United States v. Bench

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Daniel A. BENCH, Master Sergeant
United States Air Force, Appellant
No. 21-0341
Crim. App. No. 39797
Argued March 1, 2022—Decided August 8, 2022
Military Judge: Charles G. Warren
For Appellant: Captain Alexandra K. Fleszar (argued);
Mark C. Bruegger, Esq. (on brief).
For Appellee: Major John P. Patera (argued); Colonel Naomi
P. Dennis, Lieutenant Colonel Matthew J. Neil, and Mary
Ellen Payne, Esq. (on brief).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, Judge
MAGGS, and Senior Judge STUCKY joined.
_______________
Judge HARDY delivered the opinion of the Court.
The Confrontation Clause of the Sixth Amendment re-
quires that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted by the witnesses against
him.” U.S. Const. amend. VI. This case presents the question
whether Appellant’s right to be confronted by a complaining
witness was violated when trial counsel misled Appellant’s
son by telling him that Appellant was not watching his son’s
remote live testimony. Because Appellant failed to preserve
this issue at trial, the Court must decide whether any error
was plain or obvious. We hold that it was not.
The confrontation right is a procedural guarantee that en-
sures that any testimony presented to a jury be tested
through “the crucible of cross-examination.” Crawford v.
Washington, 541 U.S. 36, 61 (2004). The essential elements of
the confrontation right require that the accused have an op-
portunity to cross-examine the witness, that the witness take
an oath to tell the truth, and that the jury be able to observe
United States v. Bench, No. 21-0341/AF
Opinion of the Court
the witness’s demeanor. Maryland v. Craig, 497 U.S. 836, 851
(1990). Each of these elements was present when Appellant’s
son testified remotely during the court-martial. Although the
Court recognizes that trial counsel’s misleading statements
might have lessened the pressure Appellant’s son felt to tell
the truth, the essential elements of Appellant’s confrontation
right were still vindicated. Accordingly, we cannot say that it
should have been clear or obvious to the military judge that
the admission of EC’s testimony would materially prejudice
Appellant’s Sixth Amendment rights. The decision of the
United States Air Force Court of Criminal Appeals (AFCCA)
is affirmed.
I. Background
Based on his children’s allegations, including those of his
nine-year-old autistic son (EC), the Government charged Ap-
pellant with four offenses committed either against or in the
presence of his children. The charges included three specifi-
cations of lewd acts with children in violation of Article 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b
(Supp. IV 2013–2017), and one specification of indecent con-
duct in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012
& Supp. IV 2013–2017).
Prior to Appellant’s court-martial, the Government
requested that EC be permitted to testify remotely by video
teleconference from an area outside Appellant’s presence. The
Government argued that remote testimony was necessary “to
protect [EC’s] welfare because testimony in a courtroom
setting, in light of him being autistic, will be particularly
distressing, confusing and potentially embarrassing.”
Government Motion for Appropriate Relief: Remote
Testimony of Child Witnesses E.B. and B.B. at 1, United
States v. Bench, No. ACM 39797 (Apr. 2, 2019) (Appellate
Exhibit VII). 1 The Government further asserted that EC
would “be traumatized without remote testimony because of
the physical and verbal indications of his fear of [Appellant]
and that [Appellant] will find out he has told their ‘secret.’ ”
Id. After Appellant declined the military judge’s invitation to
1 At the time of Appellant’s court-martial, EC’s initials were EB.
Like the AFCCA below and both parties in their briefs, we refer to
EC by his current initials.
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Opinion of the Court
object to the Government’s request, the military judge
permitted EC to testify remotely.
Government trial counsel (TC), defense counsel (DC), and
the special victim’s counsel (SVC) for EC were present in the
remote location during EC’s testimony. Appellant remained
in the courtroom, along with other counsel, the military judge,
the panel, and the court reporter. Although a livestream
screen was visible to EC in the remote location, a piece of pa-
per had been placed over half the screen to block EC’s view of
the courtroom.
During EC’s testimony, he repeatedly asked trial counsel
questions about the remote testimony procedure, including
specific questions about who could hear his testimony. Sev-
eral of trial counsel’s responses, although indisputably in-
tended to ease EC’s concerns and facilitate his testimony,
were misleading or false. For example, as soon as EC began
testifying, he became distracted by the paper on the
livestream screen. EC asked why half the screen was covered,
and trial counsel answered that it was to “make sure [EC]
would be able to answer [the] questions, and not get dis-
tracted.” Trial counsel and EC then engaged in the following
exchange:
[EC:] Are there people in there?
[TC:] No, not so many.
[EC:] What?
[TC:] Nope, you just have to worry about us right
here, okay? So you’ve got me, and [the SVC], and [the
DC]. And so we’re just—
[EC:] —But are they going to—but are there going
to be people—
[TC:] —No, just the three of us right here, and we’re
going to ask you some questions, and then you’ll be
all done and you can go—go back outside, okay?
(Emphasis added.)
EC and trial counsel then engaged in an extended colloquy
meant to ensure that EC knew the difference between the
truth and a lie prior to EC taking the oath to tell the truth.
After EC established that he understood the difference, EC
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Opinion of the Court
became distracted and again asked who could hear his
testimony:
[EC:] —What—the court can hear us?
[TC:] All you’ve got is the three people right here.
[EC:] But why is it—I thought there were court [sic]
to hear us.
[TC:] Well, who you’ve got to hear you right now—
[EC:] We’re just practicing?
[TC:] We’re talking through you, yeah. But we can
hear you. And we just need you to. . . .
[EC:] But why aren’t we doing the court thing?
[TC:] We are doing the court thing.
[EC:] We are?
[TC:] Yeah.
(Emphasis added.) EC continued to ask the trial counsel ques-
tions about what was happening, including the following ex-
change specifically about Appellant:
[EC:] Is [Appellant] going to be standing right next
to them?
[TC:] No.
[EC:] Where is he going to be standing?
[TC:] He’s not in there. He’s not there. All you’ve got
to do is answer the questions that we have, okay?
[EC:] Um-huh.
(Emphasis added.) Defense counsel raised no objections to
any of trial counsel’s statements to EC.
After trial counsel’s direct examination, defense counsel
had a full opportunity to cross-examine EC. During the cross-
examination, defense counsel impeached EC’s testimony with
inconsistent statements EC had previously made to law
enforcement. Defense counsel made no attempt to inform EC
that Appellant was in the courtroom and watching EC’s live
testimony or otherwise correct any of trial counsel’s
misstatements.
A panel of officer members convicted Appellant, contrary
to his pleas, of two of the three specifications of sexual abuse
of a child in violation of Article 120b, UCMJ, and the sole
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Opinion of the Court
specification of indecent conduct in violation of Article 134,
UCMJ. The panel sentenced Appellant to twelve years of con-
finement, reduction to E-4, forfeiture of all pay and allow-
ances, and a dishonorable discharge. The convening authority
approved the sentence, and the AFCCA affirmed the sentence
and findings without considering the issue presented because
it was not raised on appeal.
We granted review to decide:
Whether lying to a witness about Appellant’s pres-
ence in the courtroom to secure testimony materially
prejudices Appellant’s Sixth Amendment right to
confrontation.
United States v. Bench, 82 M.J. 112 (C.A.A.F. 2021) (order
granting review).
II. Waiver
Before we reach the question presented, we first address
the Government’s threshold argument that Appellant waived
his Confrontation Clause claim. “When an appellant does not
raise an objection to the admission of evidence at trial, [this
Court] first must determine whether the appellant waived or
forfeited the objection.” United States v. Jones, 78 M.J. 37, 44
(C.A.A.F. 2018) (citing United States v. Sweeney, 70 M.J. 296,
303–04 (C.A.A.F. 2011)). Waiver usually occurs when there is
an “ ‘intentional relinquishment or abandonment of a known
right,’ ” United States v. Olano, 507 U.S. 725, 733 (1993)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), but this
Court has also recognized that waiver can occur by operation
of law, Jones, 78 M.J. at 44 (citing United States v. Hardy, 77
M.J. 438, 441–42 (C.A.A.F. 2018)). When an appellant fails to
raise a Confrontation Clause objection at trial, this Court
“consider[s] the particular circumstances of [the] case to de-
termine whether there was waiver,” id. (citing United States
v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008)), but “appl[ies]
a presumption against finding a waiver of constitutional
rights.” Id. (citing Sweeney, 70 M.J. at 304).
The Government argues both that Appellant intentionally
relinquished his Confrontation Clause claim and that the
claim was waived by operation of law. With respect to the first
assertion, we see nothing in the record that suggests anything
more than an unintentional failure by Appellant to make a
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Opinion of the Court
timely assertion of his rights. The Government suggests that
Appellant wanted EC to testify so that the panel could ob-
serve his erratic demeanor, and thus made an intentional,
strategic decision not to raise the Confrontation Clause claim.
No evidence supports this assertion. Because the Govern-
ment’s theory does not come close to overcoming our presump-
tion against finding waiver of constitutional rights, we con-
clude that Appellant did not intentionally abandon his claim.
The Government more reasonably argues that Appellant
waived this issue by operation of law under the plain lan-
guage of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.).
That rule provides that such claims “must be raised before
the court-martial adjourned for that case and, unless other-
wise provided in [the Manual for Courts-Martial, United
States], failure to do so shall constitute waiver.”
R.C.M. 905(e). We acknowledge that the language of the rule
would appear to be dispositive on this point in the Govern-
ment’s favor, but as this Court has recognized in the past,
there has long been disagreement in our own precedent about
whether the word “waive[d]” in R.C.M. 905(e) actually means
“waived” (as defined by the Supreme Court in Olano, 507 U.S.
at 733), or instead means “forfeited” (the failure to preserve
an issue by timely objection). See Hardy, 77 M.J. at 441–42
(noting the disagreement in this Court’s precedents); id. at
445 (Ohlson, J., dissenting) (same). Two of our more recent
precedents lead us to conclude that regardless how one inter-
prets the word “waive[d]” in R.C.M. 905(e), that rule does not
extinguish a claim when there has been plain error.
First, in United States v. Maynard, 66 M.J. 242, 243–44
(C.A.A.F. 2008), the Court reviewed a case where the appel-
lant failed to raise any objection at his court-martial to the
allegedly erroneous admission of aggravation evidence by the
military judge. Expressly citing R.C.M. 905(e), the Court
stated: “When the defense fails to object to admission of spe-
cific evidence, the issue is waived, absent plain error,” and
then stated and applied the traditional three-factor test for
plain error. Id. at 244 (emphasis added).
More recently, in Jones, 78 M.J. at 39–40, the Court re-
viewed a case where the appellant failed to raise a Confron-
tation Clause claim at trial and instead raised it for the first
time on appeal. After noting that, as a threshold matter, the
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Court needed to determine whether the claim was forfeited or
waived, the Court recognized that waiver could occur by op-
eration of law even in the absence of intentional relinquish-
ment. Id. at 44. Despite the existence of R.C.M. 905(e), the
Court concluded: “We do not see any waiver by operation of
law here.” Id. After also finding no intentional relinquish-
ment of the appellant’s claim, the Court determined that the
claim had been forfeited and applied plain error review. Id.
These two cases do not necessarily resolve the debate
about the meaning of the word “waive[d]” in R.C.M. 905(e)
with respect to all claims and all cases. But we agree that in
this case, R.C.M. 905(e) does not extinguish, by operation of
law, Appellant’s ability to argue for the first time on appeal
that the military judge committed plain or obvious error by
admitting EC’s testimony. Accordingly, we consider the mer-
its of Appellant’s Confrontation Clause claim.
III. Confrontation Clause
Appellant argues that his Sixth Amendment right to be
confronted by the witnesses testifying against him was in-
fringed when trial counsel misled EC by telling him that Ap-
pellant was not watching his remotely recorded testimony.
Because Appellant failed to raise this objection at trial and
the objection was not waived by operation of law, we test for
plain error. Jones, 78 M.J. at 44. Plain error occurs where “(1)
there is error, (2) the error was plain or obvious, and (3) the error
results in material prejudice to a substantial right of the ac-
cused.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F.
2005) (citing United States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F.
2004)).
The Sixth Amendment provides, in relevant part, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted by the witnesses against him.” U.S. Const.
amend. VI. “[T]he [Confrontation] Clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural rather
than a substantive guarantee. It commands, not that evi-
dence be reliable, but that reliability be assessed in a partic-
ular manner: by testing in the crucible of cross-examination.”
Crawford, 541 U.S. at 61. Although the procedural require-
ments have shifted over time, the Supreme Court has consist-
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ently held that “the Confrontation Clause is generally satis-
fied when the defense is given a full and fair opportunity to
probe and expose . . . infirmities [in a witness’s testimony]
through cross-examination.” Delaware v. Fensterer, 474 U.S.
15, 22 (1985). A full and fair opportunity to cross-examine
generally “guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact,” Coy v. Iowa,
487 U.S. 1012, 1016 (1988) (citing Kentucky v. Stincer, 482
U.S. 730, 748 (1987) (Marshall, J., dissenting)), because, as
the Supreme Court reasoned, “[i]t is always more difficult to
tell a lie about a person to his face than behind his back,” id.
at 1019 (internal quotation marks omitted).
Two years after the Supreme Court decided Coy, it carved
out an exception to the general rule requiring face-to-face con-
frontation. In Craig the Supreme Court permitted a child wit-
ness to testify via closed-circuit television, without any face-
to-face interaction with the accused. 497 U.S. at 849–50. The
Supreme Court held that although there is a “preference for
face-to-face confrontation at trial [this preference] must occa-
sionally give way to considerations of public policy and the
necessities of the case.” Id. (internal quotation marks omit-
ted) (citations omitted). The Supreme Court ultimately held
that the accused’s confrontation right was preserved even
though the child testified remotely because “all of the other
elements of the confrontation right” including “oath, cross-ex-
amination, and observation of the witness’[s] demeanor” were
present. Id. at 851.
Although this Court has recognized tension between the
Supreme Court’s decisions in Crawford and Craig, see United
States v. Pack, 65 M.J. 381, 384 (C.A.A.F. 2007) (“the Craw-
ford opinion itself contains statements that are difficult to
reconcile with certain other statements in the Craig opinion”),
we have also been unequivocal that we consider Craig to be
good law. As we have said before, “Craig continues to control
the questions of whether, when, and how, remote testimony
by a child witness in a criminal trial is constitutional.” Id. at
385. We therefore reject Appellant’s suggestion—raised half-
heartedly in his brief—that the military judge erred merely
by approving the Government’s unopposed request for EC to
testify remotely.
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As stated in the question presented, the only issue before
us is whether Government trial counsel prejudiced Appel-
lant’s Confrontation Clause right by telling EC that Appellant
was not listening to EC’s testimony. According to Appellant,
the answer is yes because “[a]t a minimum, the confrontation
right requires that a witness evince some minimal under-
standing that his or her testimony is being given against the
accused in an adversarial court proceeding.” Brief for Appel-
lant at 25, United States v. Bench, No. 21-0341 (C.A.A.F. Dec.
30, 2021). Put another way, Appellant argues that trial coun-
sel’s false statements unconstitutionally diminished EC’s
truthfulness because “[i]t is always more difficult to tell a lie
about a person to his face than behind his back.” Coy, 487 U.S.
at 1019 (internal quotation marks omitted).
To determine whether the military judge committed plain
error, we focus first on the second prong of the test: whether
the alleged error would have been plain or obvious. Appellant
cites no precedent from any court holding that the Sixth
Amendment confrontation right requires a child testifying re-
motely to be aware that the defendant is viewing their testi-
mony. This appears to be a matter of first impression not just
in this Court but in any court. The absence of any controlling
precedent strongly undermines Appellant’s argument that
the military judge committed plain or obvious error by admit-
ting EC’s testimony. See United States v. Lange, 862 F.3d
1290, 1296 (11th Cir. 2017) (“there can be no plain error
where there is no precedent from the Supreme Court or this
Court directly resolving it” (internal quotation marks omit-
ted) (citation omitted)); see also United States v. Akbar, 74
M.J. 364, 398–99 (C.A.A.F. 2015) (explaining that absence of
case law “is not dispositive” for plain error analysis but “does
tend to show that” there was no “plainly or obviously” error).
Appellant’s argument is further undermined by the fact
that “all of the other elements of the confrontation right” in-
cluding “oath, cross-examination, and observation of the wit-
ness’ demeanor” were satisfied. Craig, 497 U.S. at 851. First,
EC properly took an oath to tell the truth before testifying in
the remote proceeding. Military Rule of Evidence (M.R.E.)
603 requires that, “[b]efore testifying, a witness must give an
oath or affirmation to testify truthfully. It must be in a form
designed to impress that duty on the witness’[s] conscience.”
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Per this Court’s precedent, M.R.E. 603 “requires no special
verbal formula, but instead requires that the oath be mean-
ingful to the witness, including a child witness, and impress
upon the witness the duty to tell the truth.” United States v.
Washington, 63 M.J. 418, 424 (C.A.A.F. 2006).
Although EC had some difficulty keeping focused during
the initial colloquy with trial counsel, he ultimately estab-
lished that he understood the difference between telling the
truth and lying, and subsequently gave a verbal acknowledg-
ment that he would tell the truth. The trial counsel then ver-
ified for the record that EC gave an affirmative response and
defense counsel did not object. We are satisfied that EC un-
derstood the seriousness of the matter and the expectation
that he tell the truth. Craig, 497 U.S. at 845–46 (citing Cali-
fornia v. Green, 399 U.S. 149, 158 (1970)).
Second, EC was subject to unrestricted cross-examination
by Appellant’s counsel, a fact that Appellant concedes in his
brief. Brief for Appellant at 43, Bench, No. 21-0341. (“Appel-
lant does not dispute that his counsel had the opportunity to
question [EC].”). Appellant “also acknowledges that some of
the infirmities in [EC’s] testimony were exposed through . . .
questioning, which can be an indicator that the Confrontation
Clause is satisfied.” Id. (citing Fensterer, 474 U.S. at 22). De-
spite these admissions, Appellant argues that he was preju-
diced by trial counsel’s lie because EC’s testimony was unre-
liable. We disagree. Appellant received the opportunity to
subject EC’s testimony to the “crucible of cross-examination,”
Crawford, 541 U.S. at 61, which the Supreme Court has
called “the greatest legal engine ever invented for the discov-
ery of truth.” Craig, 497 U.S. at 845–46 (internal quotation
marks omitted) (citations omitted).
Finally, it is undisputed that the panel was able to observe
EC’s demeanor as he testified and assess his credibility. Id.Appellant admits this but argues that EC’s mistaken belief
that Appellant was not watching denied the panel the oppor-
tunity to observe one critical thing—EC’s demeanor when ac-
tually confronting Appellant. Brief for Appellant at 44, Bench,
No. 21-0341. We disagree that this clearly prejudiced Appel-
lant’s procedural confrontation right. Appellant cites no prec-
edent supporting his argument that this one aspect of a wit-
ness’s demeanor is what matters for Sixth Amendment
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purposes. We have no reason not to conclude that Appellant’s
confrontation right was satisfied given that the panel was
able to “ ‘look at [EC], and judge by his demeanor upon the
stand and the manner in which he [gave] his testimony
whether he is worthy of belief.’ ” Green, 399 U.S. at 158 (quot-
ing Mattox v. United States, 156 U.S. 237, 242–43 (1895)).
The Supreme Court, and this Court, have made clear that
remote testimony does not infringe on an accused’s
confrontation right if it is necessary as a matter of public
policy. Craig, 497 U.S. at 849. The Confrontation Clause
protects a procedural right that seeks reliability “by testing
in the crucible of cross-examination.” Crawford, 541 U.S. at
61. That right is satisfied when the individual testifying takes
an oath and is subject to cross-examination that is observed
by the panel. Craig, 497 U.S. at 851. Because all those
elements were present here, we cannot say that it should have
been plain or obvious to the military judge that trial counsel’s
misstatements would prejudice Appellant’s right to
confrontation. Because Appellant cannot establish the second
prong of the plain error test, we need not consider the first or
third prongs.
IV. Judgment
Whether the Sixth Amendment is violated when a counsel
misleads a witness who is testifying remotely about the ac-
cused’s presence is an open question with no clear and obvious
answer in the military justice system. As such, Appellant can-
not establish that the military judge’s admission of EC’s tes-
timony was plainly erroneous. The decision of the United
States Air Force Court of Criminal Appeals is affirmed.
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