United States v. Pyron ( 2022 )

Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellant
v.
Adam M. PYRON
Master at Arms Second Class (E-5), U.S. Navy
Appellee
No. 201900296R
_________________________
Decided: 15 July 2022
Appeal by the United States Pursuant to Article 62, UCMJ
Military Judge:
Ryan J. Stormer
Arraignment: 21 September 2021 before a general court-martial con-
vened at Naval Base San Diego, California.
For Appellant:
Lieutenant John L. Flynn IV, JAGC, USN
Major Kerry E. Friedewald, USMC
For Appellee:
Lieutenant Megan E. Horst, JAGC, USN
Judge DEERWESTER delivered the opinion of the Court, in which
Chief Judge MONAHAN and Senior Judge STEPHENS joined.
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
DEERWESTER, Judge:
Appellee’s case is before us for a second time. In 2019, a general court-mar-
tial consisting of members with enlisted representation convicted Appellee,
contrary to his pleas, of attempted rape of a child, rape of a child, and sexual
abuse of a child, in violation of Articles 80 & 120b, Uniform Code of Military
Justice [UCMJ].1 In 2021, this Court reversed Appellee’s convictions and au-
thorized a retrial owing to implied bias of one of the members.2 In July 2021,
the convening authority re-referred the same charges and specifications
against Appellee to a general court-martial.3
The Government now appeals the following issue pursuant to Article
62(a)(1)(B), UCMJ: Did the military judge abuse his discretion by excluding
Appellee’s testimony during his first court-martial due to Government actions
in the member selection process where: (a) this Court found the trial counsel’s
recitation of voir dire answers was “an honest mistake,” and (b) under Harrison
v. United States4 and United States v. Murray,5 suppression is only justified
where illegal government action directly induced the accused’s testimony? We
find that the military judge abused his discretion and reverse his decision.6
1 10 U.S.C. §§ 880, 920b.
2 United States v. Pyron, 81 M.J. 637 (N-M. Ct. Crim. App. 2021) [Pyron I].
3 Citations to the record from Appellee’s first court-martial, Pyron I, are denoted
as “R.” and citations to the record from the rehearing are denoted as “RR.” Citations to
the Prosecution Exhibits and Appellate Exhibits from the first court-martial are “Pros.
Ex.” and “Appellate Ex.” Citations to the rehearing Prosecution Exhibits and Appellate
Exhibits are “R. Pros. Ex.” and “R. Appellate Ex.”
4 Harrison v. United States, 329 U.S. 219 (1968).
5 United States v. Murray, 52 M.J. 671 (N-M. Ct. Crim. App. 2000).
6Appellee argues the Government failed to meet its burden to establish jurisdiction
under Article 62(a)(1)(B), UCMJ. To establish Article 62 jurisdiction, we must assess
2
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
I. BACKGROUND
Appellee was convicted at his first court-martial of attempted rape of a
child, rape of a child, and sexual abuse of a child for conduct alleged to have
occurred in 2019 while Appellee was stationed in Yokosuka, Japan. In Febru-
ary, Appellee spent the day watching the Super Bowl at a family friend’s home.
His friend, a civilian Navy employee, lived in off-base housing with his wife,
two sons, 16-year old step-daughter, and two daughters: an 8-year-old and a 6-
year-old. A panel composed of officer and enlisted members found Appellee
guilty at his first court-martial of conduct which we summarized in our prior
opinion:
That evening, after the parents had retired for the night to their
bedroom, [Appellee] brought both the 8- and 6-year-old girls
downstairs, and while there, exposed his penis to both of them
and rubbed his penis on the 8-year-old’s leg. After the 8-year-old
ran back upstairs to bed, [Appellee] placed his penis into the
mouth of the 6-year-old and asked her to remove her pull-up di-
aper so that he could cause contact between her vulva and his
mouth. After the 6-year-old returned to her bedroom, he followed
her there to ask her to place her mouth on his penis again. When
she refused, [Appellee] went back downstairs for the evening.7
During voir dire at Appellee’s first court-martial, his trial defense counsel
[TDC] questioned multiple members who had children similar in age to the
named victims. During individual voir dire, one of the members, Lieutenant
[LT] Alpha,8 stated that he thought of his two young daughters when he read
(1) whether evidence was excluded, and; (2) whether the evidence is substantial proof
of a material fact. United States v. Jacobsen, 77 M.J. 81, 85 (C.A.A.F. 2017). Evidence
constitutes substantial proof of a material fact if “a reasonable trier of fact could find
the evidence persuasive in establishing the proposition for which the government seeks
to admit it.” United States v. Adrian, 978 F. 2d 486, 491 (9th Cir. 1992), overruled by
United States v. Grace, 526 F.3d 499, 502 (9th Cir. 1992) (establishing that certification
by a civilian court is alone sufficient to establish jurisdiction). We find that the Gov-
ernment has met its burden and that a reasonable trier of fact could find the excluded
evidence persuasive in establishing the proposition for which the Government offered
it.
7 Pryon I, 81 M.J. at 637.
8All names in this opinion, other than those of Appellee, the judges, and counsel,
are pseudonyms.
3
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
the charges against Appellee and admitted he would have difficultly not think-
ing of them when hearing the testimony from the victims.
At the end of voir dire, TDC challenged LT Alpha for cause. During argu-
ment on the challenge, the trial counsel [TC] incorrectly asserted that a reha-
bilitation colloquy had been conducted with LT Alpha. In reality, no such re-
habilitation colloquy occurred—neither the TC nor the military judge coun-
seled LT Alpha, nor did either ask any further questions of LT Alpha after his
responses. In our prior opinion, this Court found that the military judge
adopted the TC’s “incorrect assertions and based his denial of the challenge
upon them.”9 Although we found that the TC made “an honest mistake”10 and
did not “intentionally mislead the military judge,”11 we set aside the findings
and sentence, holding that the military judge abused his discretion by failing
to grant Appellee’s implied bias challenge.12
On remand, the Government re-referred the same charges against Appellee
and sought to pre-admit Appellee’s testimony from his first court-martial un-
der Mil. R. Evid. 801(d)(2). The Government cited to Harrison v. United States
and Mil. R. Evid. 801(d)(2) for the proposition that the prior testimony was a
statement of a party opponent and that “an accused’s testimony from a former
trial is admissible in evidence against the accused at a later proceeding.” The
Government argued that by choosing to testify at his first court-martial, Ap-
pellee “waive[d] his privilege against compulsory self-incrimination … and that
waiver is no less effective or complete because the defendant may have been
motivated to take the witness stand in the first place only by reason of the
strength of the lawful evidence against him” so long as the testimony had not
been induced by illegally obtained evidence.13
9 Pyron I, 81 M.J. at 645.
10 Id. at 645 n.47.
11 Id.
12Id. at 645 (“Due to the lack of additional questioning to clarify and provide in-
structional guidance on the issue, an objective member of the public cannot be confi-
dent LT Alpha was able to do what he himself said was ‘hard’ to do. We decline to guess
whether LT Alpha was able to focus on the evidence and not his daughters during
[Appellee’s] case, as such speculation flies in the face of the liberal grant mandate.”).
13 R. App. Ex. XVII at 4 (citing Harrison, 392 U.S. at 222).
4
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
In support of its motion, and in order to meet its burden to demonstrate by
a preponderance of the evidence that Appellee’s prior testimony was not in-
duced by illegal action on the part of the Government,14 the Government en-
closed with its motion a transcript of Appellee’s pre-trial interview with Naval
Criminal Investigative Service [NCIS], a search and seizure authorization, the
trial and appellate exhibits from Appellee’s first court-martial, and a copy of
this Court’s opinion in Pyron I for consideration by the military judge. Included
in the filing was evidence introduced in the prior court-martial: (1) that the
named victims made an immediate outcry which their mother reported to the
police immediately; (2) testimony from the 8-year-old that Appellee rubbed his
penis on her leg and asked her to perform oral sex; (3) testimony from the 6-
year-old that Appellee made her perform oral sex; (4) law enforcement testi-
mony establishing chain of custody over DNA evidence; (5) the victims’ prior
forensic interviews which were entered as prior consistent statements; (6) tes-
timony from a forensic DNA examiner that she found DNA, likely from a body
fluid like saliva or vaginal secretions, consistent with the 6-year-old victim on
Appellee’s penile, pubic mound, and scrotum swabs; (7) and Appellee’s trial
testimony.15
In addition, the Government provided to the military judge the transcript
from Appellee’s NCIS interview where he consented to the collection of his
DNA after making several admissions, including that: he placed his penis in-
side the 6-year-old’s mouth after asking her if she “wanted to taste it;” he asked
the 6-year-old if he could perform oral sex on her; he touched his penis against
the 8-year-old’s leg; and, that he believed the children were between the ages
of 3- and 5-years old.16
At his first trial, Appellee took the stand in his own defense. He stated that
he was “[p]retty drunk” and did not remember doing what the accusations al-
leged.17 After he was confronted with the existence of DNA evidence and testi-
mony from the named victims, Appellee stated that he lied to NCIS.18 Appellee
testified that he remembered “waking up to a hand on my penis … Like my
boxers are pulled down and then I look over and I see … two smaller fingers
14 Rules for Court-Martial [R.C.M.] 905(c).
15 See R. App. Ex. XVII at 1-8, encl. 1-4.
16 R. App. Ex. XVII at 3; R. App. Ex. XVII, encl. 1.
17 R. at 829.
18 R. at 831-33.
5
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
and I … push that away and … I’m trying to push my penis down and I say no
and roll over.”19 Appellee explained that he did not tell this to NCIS because it
“wasn’t the same as everything they were saying,”20 and he had no memory of
it during his interrogation.21 Appellee explained that he sent incriminating
text messages to his wife because he “was so convinced that [he] was a child
rapist.”22 Appellee stated that went to sleep wearing pants with a belt and that
for a hand to get to his penis, his belt would have to be unbuckled, his pants
unbuttoned and unzipped.23 Appellee also testified that the victims reached
into his boxers and pulled out his penis while he was sleeping.24
At his second trial, Appellee opposed a Government motion to admit his
testimony from his first trial, arguing that the Government failed to meet its
burden to show that the prior testimony was not induced by the illegality of
the first trial—referring to the structural error resulting from the military
judge’s failure to grant the implied bias challenge which was the subject of this
Court’s prior opinion.25 After consideration of “all legal and competent evidence
presented by the parties, the parties’ asserted facts, all reasonable inferences
to be drawn from the evidence, allied papers and documents, and after ha[ving]
resolved any issues of credibility,”26 the military judge found:
[T]he government has not shown their actions from the first trial
did not induce the accused’s testimony in his first trial in July
2019. In its opinion, the NMCCA made it very clear that the er-
ror they found in the accused’s case was due in large part to the
government’s error in asserting inaccurate facts about a member
during the voir dire process. The government’s inaccurate reci-
tations of the facts then led the trial judge to make inaccurate
findings of fact – which resulted in the error NMCCA found in
the case. There is no evidence the government’s error was done
with malice or done intentionally, however, it was, at the very
19 R. at 834.
20 R. at 835-36.
21 R. at 835.
22 R. at 836.
23 R. at 854-55.
24 R. at 855-856.
25 App. Ex. XLV, at 4.
26 App. Ex. LV, at 1.
6
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
least, grossly negligent and was highly prejudicial to the ac-
cused. The defense has provided some evidence to the Court that
the accused did testify at this first trial due in some part to the
error that led NMCCA to conclude that his first trial was unfair.
And, while the government’s error may not rise to the level of
“illegal action” articulated in Harrison, the Court finds the gov-
ernment should not benefit from their error in the accused’s first
trial by getting to introduce his testimony from his first trial at
his second trial.
The government’s error during the accused’s first trial highly
contributed to NMCCA declaring his first trial unfair. Because
of this, the Court finds that NMCCA’s rationale in Murray also
applies to this case, and that the introduction of the accused’s
prior testimony in this case under M.R.E. 801(d)(2) would bring
the “taint” of the first trial into the second.27
II. DISCUSSION
1. Standard of Review and the Law
“In an Article 62, UCMJ, appeal, this Court reviews the military judge’s
decision directly and reviews the evidence in the light most favorable to the
party which prevailed at trial,” which in this case is Appellee.28 “A military
judge’s decision to admit or exclude evidence is reviewed under an abuse of
discretion standard.”29 Whether a military judge abuses his discretion is “far
more than a difference of opinion,”30 and occurs only where his findings are
“clearly erroneous or if his decision is influenced by an erroneous view of the
law.”31 In our review, we are bound by the military judge’s factual determina-
tions “unless they are unsupported by the record or clearly erroneous.”32 The
27 Id. at 3-4.
28 United States v. Becker, 81 M.J. 483, 488 (C.A.A.F. 2021).
29 United States v. Michael, 66 M.J. 78, 80 (C.A.A.F. 2008); see also United States
v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008) (evidentiary rulings on hearsay are
reviewed for abuse of discretion).
30 United States v. Mosley, 42 M.J. 300, 303 (C.A.A.F. 1995).
31 United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
32 Becker, 81 M.J. at 489.
7
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
abuse of discretion standard “recognizes that a judge has a range of choices
and will not be reversed so long as the decision remains within that range.”33
In Harrison, the Supreme Court promulgated the general evidentiary rule
that a criminal defendant’s testimony from a prior trial is admissible in evi-
dence against him at a later proceeding.34
A defendant who chooses to testify waives his privilege against
compulsory self-incrimination with respect to the testimony he
gives, and that waiver is no less effective or complete because
the defendant may have been motivated to take the witness
stand in the first place only by reason of the strength of the law-
ful evidence adduced against him.35
This general principle is not a bright-line rule, however. Where a defendant’s
prior testimony was induced after the prosecution put into evidence confes-
sions or admissions that were illegally obtained, the testimony becomes the
fruit of the proverbial poisonous tree and cannot be used against the accused
at later proceedings.36
In Harrison, the petitioner was convicted in his initial criminal trial after
the government introduced three confessions and the petitioner took the stand
to testify in response to his prior admissions.37 On appeal, the reviewing court
found that all three confessions had been illegally obtained by law enforcement
and were thus inadmissible against the petitioner.38 On rehearing, the prose-
cution read the petitioner’s prior testimony from his first trial to the jury and
he was again convicted.”39 While it was true that the petitioner “waive[d] his
33Gore, 60 M.J. at 187 (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3
(D.C. Cir. 1992)).
34 Harrison, 392 U.S. at 222.
35 Id.
36 Id.
37 Id. at 220.
38 Id. at 222 (“…the same principle that prohibits the use of confessions so procured
also prohibits the use of any testimony impelled thereby -- the fruit of the poisonous
tree, to invoke a time-worn metaphor.”).
39 Id. at 221.
8
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
privilege against compulsory self-incrimination with respect”40 to his prior tes-
timony, the Supreme Court observed that “[t]he question is not whether the
petitioner made a knowing decision to testify, but why. If he did so in order to
overcome the impact of confessions illegally obtained … then his testimony was
tainted by the same illegality that rendered the confessions themselves inad-
missible.”41 Accordingly, the burden is placed on the government, by a prepon-
derance of the evidence, to show that its illegal actions did not induce the tes-
timony of the criminal defendant.42
In the decades since Harrison, some jurisdictions, including our own,43 have
expanded the logic of Harrison to other due process concerns, namely cases in
which ineffective assistance of counsel directly results in an accused’s testi-
mony. In Murray, this Court reversed a military judge’s decision to allow the
admission of prior trial testimony in the appellant’s court-martial.44 There, at
his initial trial the appellant had expressed to his civilian defense counsel that
he wished to take the stand and testify in his own defense denying the allega-
tions of rape he was charged with having committed.45 Instead, at the behest
of his civilian defense counsel, he took the stand and testified consistent with
a purported legal defense based on a claim of sleep deprivation.46 We found
that the appellant was prejudiced by ineffective assistance of counsel, and that
the suggested testimony contributed to a defense that was “not a legal de-
fense.”47 We reasoned that allowing the government to introduce testimony
40 Id. at 222.
41 Id. at 223.
42See id. at 225. Both the Fifth and Tenth Circuits have recognized that Harrison
does not preclude the use of prior testimony where that testimony was compelled by
improperly admitted evidence, but rather only evidence that was improperly obtained.
See Guidry v. Lumpkin, 2 F.4th 472, 483 (5th Cir. 2021) (citing Littlejohn v. Trammell,
704 F.3d 817, 849 (10th Cir. 2013)).
43 Murray, 52 M.J. at 675 (excluding appellant’s prior testimony from trial where
ineffective assistance of counsel led appellant to take the stand and testify to establish
a defense which “CAAF found was not a legal defense”); see also Rolon v. State, 72 So.
3d 238, 242 (Fla. Dist. Ct. App. 2011) (citing Murray, 52 M.J. at 672); People v. Duncan,
527 N.E.2d 1060 (Ill. App. 1988).
44 Murray, 52 M.J. at 675.
45 Id. at 671.
46 Id. at 675.
47 Id. at 676.
9
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
which “was the direct result of the denial of the appellant’s Sixth Amendment
right to effective assistance of counsel . . . brought the taint of the constitutional
error of the first trial into the second trial.”48
2. The Military Judge Abused His Discretion by Excluding Appellee’s Testi-
mony from the Prior Trial
Based upon our review of the record, the filings by the parties, and the
relevant case law, we find that the military judge abused his discretion by
denying the Government’s motion to admit Appellee’s testimony from his prior
court-martial. Even viewing the evidence in the light most favorable to Appel-
lee, we find that the military judge made conclusions of law which fell outside
the “range of choices”49 available to him.
a. The Decision Was Based on an Erroneous View of the Law
In his ruling, the military judge determined that the Government failed to
meet its burden to establish that its own “actions from the first trial did not
induce [Appellee’s] testimony in the first trial.”50 The military judge also found
that the Defense had “provided some evidence to the Court that the accused
did testify at his first trial due in some part to this error that led NMCCA to
conclude that his first trial was unfair.”51 In reaching his conclusion, the mili-
tary judge expanded the holding of Harrison to the facts of Appellee’s case,
noting that while the Government’s error in asserting inaccurate facts about
LT Alpha during the voir dire process did not “rise to the level of ‘illegal ac-
tion,’” the Government should not benefit from the error in the accused’s first
trial.52 In so doing, the military judge applied the rationale of Murray to the
48 Murray, 52 M.J. at 675. (citing Harrison, 392 U.S. at 224 (“The exclusion of an
illegally procured confession and of any testimony obtained in its wake deprived the
Government of nothing to which it had any lawful claim and created no impediment to
legitimate methods of investigating and prosecuting crime [and] ... no more than re-
stored the situation that would have prevailed if the Government had itself obeyed the
law.”)).
49 Gore, 60 M.J. at 187 (citing Wallace, 964 F.2d at 1217 n.3).
50 R. App. Ex. LV at 3.
51 Id.52 Id.10
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
introduction of Appellee’s prior testimony, ruling that the introduction of the
prior statements would “bring the ‘taint’ of the first trial into the second.”53
As a preliminary matter, we find no support in the record or filings before
us for the proposition that Appellee has presented evidence indicating that his
decision to testify arose from the inclusion of LT Alpha as a member in his
original court-martial. Rather, the evidence introduced in Appellee’s first trial
by the Government, and attached to the record before us now, is sufficient to
meet its burden of demonstrating that Appellee did not testify at his first trial
due to the error in the member selection process. Accordingly, we find Appellee
testified “in the first place only by reason of the strength of the lawful evidence
against him”54 – specifically, Appellee’s prior admissions that were tantamount
to confessions and corroborative victim testimony and DNA evidence.
Unlike the petitioner in Harrison, none of this evidence introduced by the
Government in Appellee’s first trial was illegally obtained. To the contrary,
this Court’s sole basis for setting aside and dismissing the findings and sen-
tence in Appellee’s prior trial was an error in the member selection process.55
Under Harrison, in order for a criminal defendant’s prior testimony to be ex-
cluded in a subsequent proceeding, it is a requirement that the accused have
testified in order to “overcome the impact of confessions illegally obtained.”56
Appellee’s confessions to NCIS admitted into evidence in his first trial were
not illegally obtained.
As the military judge recognized, the actions of the Government related to
the member selection process did not rise to the level of illegal government
action, nor did those actions relate in any meaningful way to the legality of
Appellee’s admissions to NCIS. While the standard of review may be the same,
we are unwilling to equate a military judge’s error in the member selection
process with the erroneous admission of evidence illegally obtained by govern-
ment agents. There are different public policy interests at stake. Harrison is
53 Id.54 Harrison, 392 U.S. at 222.
55 Pyron I, 81 M.J. at 645.
56 Harrison, 392 U.S. at 223. Our prior holding in Murray stands only for the prop-
osition that the logic of Harrison may be expanded to instances where ineffective as-
sistance of counsel directly results in the criminal defendant’s testimony. Murray, 52
M.J. at 675.
11
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
ultimately a prohibition against (re)trials being tainted by the illegal actions
of government agents, not the good-faith mistakes of trial judges.57
Accordingly, we find the military judge’s application of Harrison to the cir-
cumstances of Appellee’s prior testimony to be clearly erroneous. Even if reli-
able evidence were presented that Appellee testified as a result of the inclusion
of LT Alpha on the member panel, the military judge abused his discretion in
applying this Court’s decision in Murray to exclude Appellee’s prior testimony.
Murray stands for the proposition that the Government should not benefit on
rehearing from testimony that was the direct result of the denial of the ac-
cused’s right to effective assistance of counsel.58 We do not construe that deci-
sion to authorize the extension of Harrison’s exclusionary rule to an error (vice
illegal activity) during the voir dire process. Because the Government met its
burden in demonstrating by a preponderance of the evidence that Appellee did
not testify at his initial court-martial due to any illegal action on the part of
the Government, we find that the military judge abused his discretion in deny-
ing Appellant’s motion to admit Appellee’s prior testimony into evidence.
III. CONCLUSION
The ruling of the military judge is VACATED and the case is RE-
MANDED for further proceedings not inconsistent with this opinion.
Chief Judge MONAHAN and Senior Judge STEPHENS concur.
57Moreover, although the TC was mistaken when he asserted to the military judge
in Appellee’s first trial that LT Alpha had been rehabilitated, we previously opined
that this blunder was an “honest mistake.” Pyron I, 81 M.J. at 645 n.47. To the extent
that the military judge for Appellee’s rehearing found that the TC’s actions were, “at
the very least, grossly negligent,” App. Ex. LV, at 3, we find that finding of fact to be
clearly erroneous. Indeed, based on the circumstances, including the large venire con-
sisting of 14 members and the length of time it took to conduct general and individual
voir dire, we find TC’s misstep was the product of simple negligence.
58 Murray, 52 M.J. at 675.
12
United States v. Pyron, NMCCA No. 201900296R
Opinion of the Court
FOR THE COURT:
J. TRAVIS WILLIAMSON
Acting Clerk of Court
13