United States v. Ahern

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Sean M. AHERN, Lieutenant Colonel

United States Army, Appellant

No. 17-0032

Crim. App. No. 20130822

Argued March 1, 2017—April 20, 2017

Military Judges: James W. Herring Jr. and Michael J. Hargis

For Appellant: Kirk Sripinyo, Esq. (argued); Captain Mi-

chael A. Gold and Samuel C. Moore, Esq. (on brief).

For Appellee: Captain Samuel E. Landes (argued); Colonel

Mark H. Sydenham and Lieutenant Colonel A. G. Courie

III (on brief); Major Anne C. Hsieh and Captain Catharine

M. Parnell.

Judge RYAN delivered the opinion of the Court, in

which Chief Judge ERDMANN, and Judges STUCKY,

OHLSON, and SPARKS, joined.

_______________

Judge RYAN delivered the opinion of the Court.

A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one specifica-

tion of aggravated sexual assault of a child and one specifi-

cation of aggravated sexual assault by causing bodily harm,

in violation of Article 120, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920 (2006) (amended by National De-

fense Authorization Act for Fiscal Year 2006, Pub. L. No.

109–163, § 552, 119 Stat. 3136 (2006)); one specification of

assault consummated by battery, in violation of Article 128,

UCMJ, 10 U.S.C. § 928 (2000); three specifications of inde-

cent acts upon a child, and one specification of child endan-

germent, in violation of Article 134, UCMJ, 10 U.S.C. § 934

(2000). The adjudged and approved sentence provided for

dismissal and confinement for seventeen years and six

months.

United States v. Ahern No. 17-0032/AR

Opinion of the Court

The United States Army Court of Criminal Appeals

(ACCA) affirmed the findings and sentence as approved by

the convening authority. United States v. Ahern, No. ARMY

20130822, 2016 CCA LEXIS 528, at *28, 2016 WL 4488148,

at *10 (A. Ct. Crim. App. Aug. 24, 2016). We granted Appel-

lant’s petition to review the following issue:

Whether the lower court erred when it held

that the prohibition against using an admis-

sion by silence provided by Mil. R. Evid.

304(a)(2) is triggered only “when the accused is

aware of” an investigation contrary to the plain

language of the rule.

We hold that Appellant waived his Military Rule of Evidence

(M.R.E.) 304(a)(2) claim. The judgment of the Army Court of

Criminal Appeals is affirmed. We do not consider or decide

the question whether the prohibition provided by M.R.E.

304(a)(2) is triggered by investigation alone, or only when an

accused is actually aware of an investigation.

I. FACTS

Appellant’s convictions are all related to Appellant’s sex-

ual abuse of his stepdaughter, SS, occurring between 2004

and 2010. During the investigation, civil law enforcement

officers assisted SS and SA, Appellant’s wife, in sending

pretextual text messages and phone calls to Appellant in an

attempt to elicit incriminating responses. SS sent a text

message to Appellant, seeking an incriminating response –

Appellant did not respond. In a phone call, SA accused Ap-

pellant of sexually abusing his stepdaughter:

[SA]: So, you know, and she [my therapist]

says, you know, I have—you know—the root of

my problem is this anger. So I need to deter-

mine what is causing that anger in order for

me to deal with it. And, you know, I’ve told

her, you know, that you had an affair. I didn’t,

obviously, tell her it was with my daughter.

But, you know, I’m—what I am trying to un-

derstand is how did this happen [Appellant]?

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Opinion of the Court

[Appellant]: What?

[SA]: The whole thing with you and SS, I

mean, why? Why—why did you have to do that

with her?

[Appellant]: [SA], are you kidding me? I’m on a

phone?

As SA pressed the subject, Appellant responded, variously,

“are you nuts,” “[w]e are going through a divorce,” “[a]re you

kidding me,” “I am not going to get into this stuff,” “[t]his is

you and SS doing your thing,” “[t]his is all part of the di-

vorce,” “[this is] all part of the custody thing,” and “[y]ou’re

making all of this stuff up.”

Appellant himself moved to admit the pretextual text

message into evidence. The Government moved in limine to

admit the phone conversation between Appellant and SA in

which SA accused Appellant of sexually assaulting SS. The

Government also sought to admit a short phone call between

Appellant and SS in which Appellant hung up early in the

call. The following exchange took place between the military

judge and defense counsel:

[MJ]: … I’d like to move to the government’s

motions. I note that there are a number of

these. I was informed by counsel during an

[R.C.M.] 802 session held earlier this morning

that there are a number of these government

motions that the defense is not contesting. Is

that correct, defense counsel?

[CDC]: That is correct, Your Honor.

[MJ]: Okay. Very well.

And if I believe according to the Court’s notes,

those would be the government Motion in

Limine to Admit the Pretext Telephone Calls,

which has been marked as Appellate Exhibit

VII. I received no defense response to that mo-

tion. Defense counsel, you are not contesting

that motion.

Is that correct?

[CDC]: Correct, Your Honor.

(Brackets in original.) Later, the Government admitted the

phone call into evidence, and the following exchange took

place:

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Opinion of the Court

[ATC]: Your Honor, the government moves to

admit Prosecution Exhibit 3 for identification

into evidence.

MJ: Objections, defense?

[CDC]: No objections.

The Government then played the phone call for the panel.

During closing argument, trial counsel argued that Appel-

lant’s failure to deny the accusations made in the text mes-

sages and phone calls was evidence of his guilt:

In Prosecution Exhibit 3, panel members, that

is the pre-text phone call between [SA] and

[Appellant]. You have to listen to that because

[SA] says verbatim, “I told her—I told my

counselor we [sic] were having an affair.” And

what does [Appellant] say? Does he ever say

what are you talking about? Are you crazy?

She says, we are having—“You were having an

affair with my daughter.” What would you say

if your ex-wife says this to you? What does

[Appellant] say? Listen to it. He says, “[SA],

are you kidding. I am on the phone.” Who

would say that. I am on the phone? [SA] con-

tinues, “I didn’t get the whole story, [Appel-

lant.]” Does he ever say what are you talking

about? What story? I didn’t give you a story.

Does he ever say anything like that. He says,

“I am not going into that stuff.” Panel members

that is an indicia of guilt. There is no denials

[sic] by [Appellant]. There is no evidence that

he ever denies any of this. . . . Defense Exhibit

BBB, this is a text message that [SS] sends

him saying it has come out, people are coming

to talk to me. He never denies anything. Why

is that? Because he is guilty.

The defense did not object at any point during or after clos-

ing argument.

II. ACCA DECISION

At the ACCA, Appellant argued that he was under inves-

tigation at the time of the pretextual phone conversation.

Therefore, he claims, M.R.E. 304(a)(2) prohibited trial coun-

sel from arguing that Appellant admitted his guilt by re-

maining silent in response to accusations of sexual abuse.

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Opinion of the Court

The ACCA first concluded that Appellant had forfeited

his right to appeal by failing to file a motion under M.R.E.

304, which triggered plain error review. Ahern, 2016 CCA

LEXIS 528, at *11–12, 2016 WL 4488148, at *4. Next, the

ACCA concluded that the protections of M.R.E. 304(a)(2) are

triggered only when the accused is actually aware that he is

being investigated. Id. at *12, 2016 WL 4488148, at *4. Fi-

nally, the ACCA concluded that any error was not plain and

obvious. Id. at *12–13, 2016 WL 4488148, at *4. The record

was ambiguous as to whether Appellant even knew there

was a criminal investigation underway, and without that

fact, M.R.E. 304(a)(2) would not exclude the phone calls even

under Appellant’s interpretation. Id. at *21–22, 2016 WL

4488148, at *8. The ACCA also reasoned that trial counsel’s

brief argument would not have resulted in material preju-

dice to Appellant’s substantial rights for three reasons.

First, Appellant repeatedly admitted to SA that he had sex

with SS. Id. at *24, 2016 WL 4488148, at *9. Second, the

Government’s argument that Appellant was silent was

strained, as he appears to deny the accusations in the phone

call. Id., 2016 WL 4488148, at *9. Third, the same conversa-

tions that the Government argued were evidence of guilt

were argued by Appellant to be evidence of his innocence. Id.

at *24–25, 2016 WL 4488148, at *9.

Notably, the ACCA suspected that Appellant’s failure to

object was likely a conscious choice. Id. at *23, 2016 WL

4488148, at *8. Nevertheless, the ACCA resolved the case on

the grounds of plain error and did not consider whether Ap-

pellant had waived his claim. Id. at *22–23, 2016 WL

4488148, at *8–9.

III. DISCUSSION

“Deviation from a legal rule is ‘error’ unless the rule has

been waived.” United States v. Girouard, 70 M.J. 5, 10

(C.A.A.F. 2011) (internal quotation marks omitted) (citation

omitted). While this Court reviews forfeited issues for plain

error, United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.

2009), we do not review waived issues because a valid waiv-

er leaves no error to correct on appeal. United States v.

Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting United

States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)).

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Whether an accused has waived an issue is a question of

law we review de novo. See United States v. Rosenthal, 62

M.J. 261, 262 (C.A.A.F. 2005). “Whereas forfeiture is the

failure to make the timely assertion of a right, waiver is the

intentional relinquishment or abandonment of a known

right.” Gladue, 67 M.J. at 313 (internal quotation marks

omitted) (quoting United States v. Olano, 507 U.S. 725, 733

(1993)). “Whether a particular right is waivable; whether the

defendant must participate personally in the waiver; wheth-

er certain procedures are required for waiver; and whether

the defendant’s choice must be particularly informed or vol-

untary, all depend on the right at stake.” Girouard, 70 M.J.

at 10 (internal quotation marks omitted) (quoting Olano,

507 U.S. at 733).

The right at issue in this case is contained within a Mili-

tary Rule of Evidence, promulgated by the President pursu-

ant to his authority to prescribe rules of evidence for courts-

martial under Article 36, UCMJ, 10 U.S.C. § 836 (2012). 1

M.R.E. 304(a)(2) provides that “[f]ailure to deny an accusa-

tion of wrongdoing is not an admission of the truth of the

accusation if at the time of the alleged failure the person

was under investigation or was in confinement, arrest, or

custody for the alleged wrongdoing.” Appellant argues that

the military judge erred in allowing trial counsel to argue

that Appellant admitted guilt by remaining silent in re-

sponse to an accusation. But the rule underlying Appellant’s

claim also provides that his failure to object to the admission

of the phone calls constitutes waiver of his right to complain

that they were used in this fashion.

M.R.E. 304(f)(1) plainly states that claims arising under

M.R.E. 304(a)(2) are waived absent an objection:

Motions to suppress or objections under this

rule, or Mil. R. Evid. 302 or 305, to any state-

ment or derivative evidence that has been dis-

closed must be made by the defense prior to

submission of plea. In the absence of such mo-

tion or objection, the defense may not raise the

1 It is well established that principles of statutory construction

are used in construing the Military Rules of Evidence. See United

States v. Matthews, 68 M.J. 29, 36 (C.A.A.F. 2009).

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Opinion of the Court

issue at a later time except as permitted by the

military judge for good cause shown. Failure to

so move or object constitutes a waiver of the ob-

jection.

(Emphasis added.) This is not a case where the rule uses the

word “waiver” but actually means “forfeiture.” See, e.g., Rule

for Courts-Martial (R.C.M.) 920(f) (providing for “waiver”

but only “in the absence of plain error”); see also United

States v. Payne, 73 M.J. 19, 23 & n.3 (C.A.A.F. 2014) (apply-

ing a plain error analysis to R.C.M. 920(f), which states that

the failure to object constitutes “‘waiver of the objection in

the absence of plain error’”). M.R.E. 304(f)(1) does not men-

tion plain error review, and instead unambiguously provides

that any claim arising under M.R.E. 304 is waived absent an

objection.

Appellant nonetheless suggests that waiving objection to

the admission of the phone calls does not constitute waiver

of his right to object to the Government’s use of the phone

calls to argue that his silence indicates guilt. But this is a

distinction without legal support in this context, since the

entire point of the rule he seeks the protection of is to pro-

hibit the use of negative or inadequate responses to an accu-

sation as an admission or indication of guilt. See United

States v. Cook, 48 M.J. 236, 240 (C.A.A.F. 1998) (“The gist of

[the predecessor to M.R.E. 304(a)(2), M.R.E. 304(h)(3),] is

that silence by an accused who is under investigation will

not logically support an inference of guilt.”); Cf. Combs v.

Coyle, 205 F.3d 269, 285 (6th Cir. 2000) (“[T]he use of

prearrest silence may even subvert the truthfinding process;

because it pressures the defendant to explain himself or to

suffer a court-sanctioned inference of guilt, the likelihood of

perjury is increased.”). Conversely, the only purpose of ad-

mitting such responses is to argue an inference of guilt. We

further note that both M.R.E. 105 and its civilian counter-

part “place primary if not full responsibility upon counsel for

objecting to or limiting evidence.” See Manual for Courts-

Martial, United States, Analysis of the Military Rules of Ev-

idence app. 22 at A22-4 (2012 ed.).

Even without M.R.E. 304(f)(1), Appellant’s statement

that he had no objection constitutes waiver of his right to

object to this Court regarding the admission and use of his

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pretrial statements. See Campos, 67 M.J. at 332 (“[A] valid

waiver leaves no error for us to correct on appeal”). This case

is similar to Campos. In Campos, the government moved to

admit into evidence a stipulation of the expected testimony

of an expert witness. 67 M.J. at 331. The military judge

asked Campos if he objected to the stipulation, and Campos

responded, “‘No, Your Honor.’” Id. On appeal, Campos chal-

lenged the admissibility of the expert’s expected testimony.

Id. at 332. The Court noted that while circumstances might

arise in which a “no objection” statement would not be waiv-

er, Campos’s knowledge of the nature of the testimony indi-

cated that he had intentionally relinquished his right to ap-

peal:

[T]here is no question that defense counsel had

advance notice of the substance of Dr. Arnold’s

testimony, that he reviewed the expected tes-

timony, and that he considered the impact of

the stipulation on his client’s case. At trial the

military judge presented defense counsel with

an opportunity to voice objections to the ex-

pected testimony and counsel responded that

he had no objections.

Id. at 333.

In this case too, Appellant was fully aware of the content

of the phone calls prior to their admission, and introduced

similar evidence in the form of the text message sent by SS.

Appellant had numerous opportunities to object to the ad-

mission of the phone conversations both before and during

the trial. Instead, when the Government moved in limine at

an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), hearing to

admit the phone calls, Appellant affirmatively indicated he

would not contest that motion. Later, Appellant replied that

he had “no objection” when the Government actually sought

to admit the phone calls and play them for the panel. And

when trial counsel argued that Appellant’s silence in re-

sponse to his wife’s accusations and stepdaughter’s text

message indicated his guilt, Appellant still raised no objec-

tion.

The ACCA’s application of forfeiture in the context of this

case was error. Under the clear dictates of M.R.E. 304(f)(1),

Appellant’s failure to object to the admission of the tele-

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Opinion of the Court

phone calls waives his right to object to their admission on

appeal. Moreover, under the ordinary rules of waiver, Appel-

lant’s affirmative statements that he had no objection to

their admission also operate to extinguish his right to com-

plain about their admission on appeal. See Campos, 67 M.J.

at 332–33 (finding waiver where appellant stated “‘no objec-

tion’” to the admission of testimony); United States v. Smith,

531 F.3d 1261, 1267–68 (10th Cir. 2008) (finding waiver

where the appellant “affirmatively stated that he had ‘no

objection’ to the evidence” and used the evidence in his ar-

gument). Accordingly, Appellant has waived his right to ob-

ject to the admission of the phone calls and, relatedly, their

use.

IV. DECISION

The judgment of the United States Army Court of Crimi-

nal Appeals is affirmed.

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