Petition for Writ of Certiorari — Juston D. Beyer, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

JUSTON D. BEYER,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

TREVOR N. WARD

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

trevor.n.ward.1@us.af.mil

Counsel for Petitioner

QUESTION PRESENTED

Petitioner made an unrebutted showing of good

cause to the Court of Appeals for the Armed Forces to

review his case. Nevertheless, the court denied

review. Did the Court of Appeals for the Armed Forces

abuse its discretion by failing to grant review?

ii

PARTIES TO THE PROCEEDING

All parties to this proceeding appear in the caption

on the cover page of this petition.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Other than the direct appeals that form the basis

for this petition, there are no related proceedings for

the purposes of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ..................................... ii

CORPORATE DISCLOSURE STATEMENT......................... ii

RELATED PROCEEDINGS .............................................. ii

TABLE OF CONTENTS .................................................. iii

TABLE OF AUTHORITIES ................................................ V

PETITION FOR A WRIT OF CERTIORARI .......................... 1

DECISIONS BELOW ........................................................ 1

JURISDICTION ............................................................... 1

STATUTORY AND EVIDENTIARY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE ............................................. 3

REASONS FOR GRANTING THE PETITION ....................... 7

I. The CAAF’s denial shows that it has

improperly narrowed the meaning of “on

good cause shown,” which this Court can

and should review. ............................................. 7

A. By statute, the CAAF is required to review

all cases where a petitioner shows “good

cause.” ........................................................... 7

B. SrA Beyer demonstrated good cause. ........ 11

II. SrA Beyer made a showing of “good cause.”

The trial judge abused his discretion by

denying the defense motion to admit Rule

412 evidence while allowing the prosecution

to elicit similar Rule 412 evidence, to the

detriment of SrA Beyer. ............................. 11

A. The military judge did not follow proper

procedures. .................................................. 12

iv

B. SrA Beyer suffered prejudice. ..................... 14

C. The Air Force Court erred in its review of

this issue. .................................................... 15

CONCLUSION .............................................................. 17

APPENDIX

CAAF Order, United States v. Beyer,

No. 25-0144 (July 1, 2025) .................................. 1a

Air Force Court Opinion, United States v. Beyer,

No. ACM 40566 (February 21, 2025) .................. 2a

v

TABLE OF AUTHORITIES

Cases

28 U.S.C. § 1259(3) ..................................................... 2

McPhail v. United States, 1 M.J. 457

(C.M.A. 1976)......................................................... 11

Mil. R. Evid. 412(c)(1) ............................................... 13

Randolph v. HV, 76 M.J. 27 (C.A.A.F.

2017) ...................................................................... 10

United States v. Armsbury, __ M.J. __,

No. 25-0233/AR, 2025 CAAF LEXIS

655 (C.A.A.F. Aug. 6, 2025) .................................... 8

United States v. Byrd, 53 M.J. 35

(C.A.A.F. 2000) ...................................................... 10

United States v. Calvillomagana, __ M.J.

__, No. 25-0142/AR, 2025 CAAF

LEXIS 315 (C.A.A.F. Apr. 22, 2025) ....................... 8

United States v. Caprio, 12 M.J. 30

(C.M.A. 1981)........................................................... 8

United States v. Carista, 76 M.J. 511 (A.

Ct. Crim. App. 2017) ............................................. 13

United States v. Davis, __ M.J. ___, No.

24-0152/AR, 2024 CAAF LEXIS 314

(C.A.A.F. May 14, 2024) .......................................... 9

United States v. Deremer, __ M.J. __, No.

25-0158/MC, 2025 CAAF LEXIS 350

(C.A.A.F. May 5, 2025) ............................................ 8

United States v. Downum, __ M.J. ___,

No. 24-0156/AR, 2024 CAAF LEXIS

315 (C.A.A.F. May 14, 2024) ................................... 9

vi

United States v. Ellis, __ M.J. __, No. 250197/AR, 2025 CAAF LEXIS 481

(C.A.A.F. June 23, 2025) ......................................... 8

United States v. Flanner, 84 M.J. 303

(C.A.A.F. 2024) ........................................................ 9

United States v. Ford, __ M.J. __, No. 250143/AR, 2025 CAAF LEXIS 306

(C.A.A.F. Apr. 22, 2025) .......................................... 8

United States v. Harborth, 84 M.J. 344

(C.A.A.F. 2024) ........................................................ 9

United States v. Hennessy, 85 M.J. 396

(C.A.A.F. 2025) ........................................................ 8

United States v. Hunt, __ M.J. __, No. 250257/AF, 2025 CAAF LEXIS 734

(C.A.A.F. Sep. 2, 2025) ............................................ 8

United States v. Ixcolgonzalez, __ M.J.

__, No. 25-0243/MC, 2025 CAAF

LEXIS 685 (C.A.A.F. Aug. 19, 2025) ...................... 8

United States v. Jones, __ M.J. __, No. 250141/AR, 2025 CAAF LEXIS 310

(C.A.A.F. Apr. 22, 2025) .......................................... 8

United States v. Kershaw, __ M.J. __, No.

25-0117/AF, 2025 CAAF LEXIS 408

(C.A.A.F. May 27, 2025) .......................................... 8

United States v. Malone, __ M.J. __, No.

25-0140/AR, 2025 CAAF LEXIS 299

(C.A.A.F. Apr. 21, 2025) .......................................... 8

United States v. Mendoza, __ M.J. __, No.

25-0244/AR, 2025 CAAF LEXIS 690

(C.A.A.F. Aug. 20, 2025) ......................................... 8

vii

United States v. Moore, 85 M.J. 394

(C.A.A.F. 2025) ........................................................ 8

United States v. Patterson, 85 M.J. 320

(C.A.A.F. 2025) ........................................................ 8

United States v. Rocha, __ M.J. __, No.

25-0157/AF, 2025 CAAF LEXIS 352

(C.A.A.F. May 5, 2025) ............................................ 8

United States v. Rodriguez, 67 M.J. 110

(C.A.A.F. 2009) .................................................. 9, 10

United States v. Rorie, 58 M.J. 399

(C.A.A.F. 2003) .................................................. 9, 10

United States v. Rudometkin, 82 M.J.

396 (C.A.A.F. 2022) ............................................... 12

United States v. Serjak, 85 M.J. 407

(C.A.A.F. 2025) ........................................................ 8

United States v. St. Jean, 83 M.J. 109

(C.A.A.F. 2023) ...................................................... 11

Statutes

10 U.S.C. § 866 ............................................................ 1

10 U.S.C. § 867 ................................................ 1, 2, 7, 9

10 U.S.C. § 867(a)(3) ................................................... 1

28 U.S.C. § 1259 ........................................................ 10

28 U.S.C. § 1259 (2018) ............................................ 11

Rules and Regulations

Mil. R. Evid. 412 ....................................................... 12

Mil. R. Evid. 412(b) ............................................... 2, 12

Mil. R. Evid. 412(c) ......................................... 2, 12, 13

viii

Other Authorities

Legal Services, Dep’t of the Army,

Pamphlet No. 27-173, Trial Procedure

247 (1992) .............................................................. 10

S. REP. NO. 98-53 (1983) ....................................... 9, 10

1

INTRODUCTION

The Court of Appeals for the Armed Forces (CAAF)

must review all cases where petitioners demonstrate

good cause shown. 10 U.S.C. § 867. This statutory

mandate is clear: so long as a petitioner shows “good

cause,” then the CAAF must review the case. 10

U.S.C. § 867. Here, the Petitioner demonstrated good

cause by showing that the lower courts erred.

Nevertheless, the CAAF declined to review his case.

This was an abuse of discretion that this Court can

and should review.

PETITION FOR A WRIT OF CERTIORARI

Senior Airman (SrA) Juston D. Beyer, United

States Air Force, respectfully petitions for a writ of

certiorari to review the decision of the United States

Court of Appeals for the Armed Forces (CAAF)

denying review of the Air Force Court of Criminal

Appeals’s (Air Force Court) decision.

DECISIONS BELOW

The decision of the Air Force Court is unreported.

It is available at 2025 CCA LEXIS 80, 2025 WL

688917, and is reproduced at pages 2a-5a. The CAAF’s

decision in Petitioner’s case is not yet reported. It is

available at 2025 CAAF LEXIS 514, 2025 WL

2304808, and reproduced at page 1a.

JURISDICTION

The Air Force Court of Criminal Appeals (“Air

Force Court”) had jurisdiction over this matter

pursuant to Article 66, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 866. The CAAF had

jurisdiction pursuant to Article 67(a)(3), UCMJ, 10

U.S.C. § 867(a)(3). The CAAF declined to grant review

and issued its order denying review on July 1, 2025.

2

This Court’s has jurisdiction pursuant to 28 U.S.C. §

1259(3).

STATUTORY AND EVIDENTIARY PROVISIONS

INVOLVED

Article 67, UCMJ, 10 U.S.C. § 867, provides, in

pertinent part, that “[t]he [CAAF] shall review the

record in . . . all cases reviewed by a Court of Criminal

Appeals in which, upon petition of the accused and on

good cause shown, the [CAAF] has granted a review.”

(emphasis added).

Mil. R. Evid. 412(b) provides, in pertinent part,

that:

[T]he following evidence is admissible, if

otherwise admissible under these rules:

....

(2) evidence of specific instances of a victim’s

sexual behavior with respect to the person

accused of the sexual misconduct, if offered by

the accused to prove consent or if offered by the

prosecution; and

(3) evidence the exclusion of which would

violate the accused’s constitutional rights.

Mil. R. Evid. 412(c) provides, in pertinent part, that:

(1) A party intending to offer evidence under

subdivision (b) must—

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the

evidence and stating the purpose for which

it is offered unless the military judge, for

good cause shown, requires a different time

for filing or permits filing during trial . . .

3

....

(2) Before admitting evidence under this rule,

the military judge must conduct a hearing,

which shall be closed. . . .

STATEMENT OF THE CASE

SrA Beyer and the alleged victim, M.L., were in a

long-term dating relationship, which began in

September 2018 when M.L. was seventeen years old

and SrA Beyer was eighteen years old. R. at 23; 613.

SrA Beyer and M.L. had known each other since

childhood but did not have a romantic or sexual

relationship prior to September 2018. R. at 525. At the

time their relationship began, SrA Beyer and M.L.

were living in the same geographic area. R. at 608. In

January of 2019, SrA Beyer left for basic training; the

two decided to stay together in a long-distance

relationship. R. at 531. They reunited in August 2019

and continued their dating relationship until a brief

breakup that fall. R. at 532, 536.

In December of 2019, SrA Beyer and M.L. planned

to spend “one last Christmas together” in Georgia; but

the two planned to break up after Christmas. R. at

539. SrA Beyer arrived in Georgia on December 19,

2019, and spent every day with M.L. R. at 622; App.

Ex. XLIII. M.L. testified that the two likely had sex

every day of his visit leading up to the alleged assault

on December 23, 2019, and continued to have

consensual sex for several days after the alleged

assault. R. at 563, 624; App. Ex. XLIII.

On December 23, 2019, SrA Beyer and M.L. went

ice skating with M.L.’s sister and her boyfriend before

returning to M.L.’s mother’s house where SrA Beyer

was going to spend the night. R. at 543. While they

had mutually agreed that they would be ending their

4

relationship at the end of the Christmas break, M.L.

testified that she began to feel “sad, anxious, [and]

upset” about their impending breakup. R. at 544.

When they got to the house, M.L. took a shower. R.

at 544. After her shower, M.L. returned to the

bedroom and told SrA Beyer she had not shaved in the

shower because she did not want to have sex. R. at

628. SrA Beyer did not ask M.L. to have sex or argue

with her about it. R. at 628. Instead, SrA Beyer offered

her a massage, which she accepted. R. at 546. M.L.,

who was still naked from her shower, did not put on

any clothes during the massage. R. at 547. M.L. laid

face down on the bed while SrA Beyer massaged her.

R. at 547. M.L. testified that SrA Beyer started by

massaging her back and shoulders. R. at 548. SrA

Beyer then began to move his hands down M.L.’s back.

R. at 549. At this point, SrA Beyer began to

masturbate, which M.L. did not mind. R. at 549.

As SrA Beyer began to push his erection against

her bare buttocks, M.L. did not say anything to him or

move. R. at 632. M.L. claimed that when she noticed

SrA Beyer move into a position to have sex with her,

she responded by saying, “Juston, no sex.” R. at 549.

M.L. did not move from her position on the bed and

testified that SrA Beyer continued to attempt to

position his penis near her vagina. R. at 549-50. M.L.

claimed she again told him “no sex,” but he did not

respond to her. R. at 550, 636. M.L. conceded that she

did not raise her voice or turn around to tell him “no,”

but, rather, assumed he had heard her. R. at 636.

M.L. said that SrA Beyer then penetrated her

vagina with his penis without her consent. R. at 550.

M.L. testified that she “froze” and after a few

moments, SrA Beyer asked her if he should continue,

5

to which she responded, “I don’t care.” R. at 551. In

response, SrA Beyer abruptly stopped having sex and

began to apologize to her. R. at 552. After, M.L. asked

SrA Beyer to sleep in her bed with her that night

because she “needed someone that night” and “he was

supposed to be that someone.” R. at 561.

Prior to trial, the Defense provided notice, and

sought admission, of potential Mil. R. Evid. 412

evidence. App. Exs. XIV, XVI, XXXIII, XXXIV. The

military judge denied the Defense motions to admit

the evidence. R. at 198-205. The prosecution also

provided notice of a single piece of Rule 412 evidence

it would seek to admit at trial: that M.L. and SrA

Beyer had a consensual sexual relationship. App. Ex.

XIX. The military judge did not rule on the

prosecution’s motion. R. at 205, 214.

Despite not providing notice, the prosecution,

during their case-in-chief and direct examination of

M.L., elicited specific instances of sexual acts between

M.L. and SrA Beyer. R. at 533. The Defense objected,

citing the military judge’s earlier denial of the

Defense’s motion to introduce Rule 412 evidence about

specific sexual acts. R. at 534. Without holding a

closed hearing, the military judge overruled the

Defense’s objection, and M.L.’s examination

continued. R. at 535. M.L. then testified that “consent

was very complicated during the relationship.” R. at

533. She elaborated that when engaged in a sexual

encounter with SrA Beyer, they would start kissing

and “would then move towards some sort of hand

action, either my hand on his genitals or his hand on

mine and then before we would have sex he would get

a condom and that was sort of our get a condom queue

[sic], we’re about to have intercourse.” R. at 535

(emphasis added).

6

M.L.’s testimony on those specific instances of

sexual acts resulted in a deluge of questions from the

jury. R. at 722-40, 746-48. The Defense objected to

each question, again citing the military judge’s earlier

denial of the Defense’s motion to introduce Rule 412

evidence about specific sexual acts. R. at 722-40.

Nevertheless, the military judge permitted several

juror questions about prior condom use. See, e.g., R. at

736, 746-48.

During closing argument, the lead prosecutor

stated:

[L]et’s recall when [M.L.] testified to you all

with respect to consent in the past in the

relationship. She provided essentially four

things, it will begin with kissing, from there it

would go to some type of foreplay, the third

thing would be a suggestion to someone to get a

condom, and forth [sic] she said she typically

shaved.

R. at 814.

The prosecutor continued, arguing that there was

no consent because there was no condom on the night

of the alleged incident. R. at 814.

The Air Force Court rejected SrA Beyer’s appeal

challenging the military judge’s Rule 412 ruling. Pet.

App. 4a. The sum of the Air Force Court’s opinion

asserts that the Rule 412 issue was “without merit.”

Pet. App. 4a. According to the Air Force Court, the

“record [did] not support” this issue because the

military judge “invited the Defense to offer additional

evidence” after he denied SrA Beyer’s motion Pet.

App. 4a.

7

SrA Beyer petitioned the CAAF, alleging that the

military judge abused his discretion by denying SrA

Beyer’s motion to admit Rule 412 evidence, while

allowing the prosecution to elicit similar evidence. The

CAAF denied review of this case. Pet. App. 1a.

REASONS FOR GRANTING THE PETITION

The CAAF must review all cases where a petitioner

demonstrates good cause. 10 U.S.C. § 867. SrA Beyer

showed good cause because the lower courts erred in

prohibiting him from introducing Rule 412 evidence

while permitting the prosecution and jurors to ask

questions implicating similar evidence. The CAAF

abused its discretion by failing to grant review of SrA

Beyer’s case.

This Court should grant review and remand to the

CAAF. In so doing, this Court should instruct the

CAAF that it has a statutory obligation to grant

review in all cases where good cause is shown.

I. The CAAF’s denial shows that it has

improperly narrowed the meaning of “on good

cause shown,” which this Court can and should

review.

A. By statute, the CAAF is required to review

all cases where a petitioner shows “good

cause.”

Congress requires the CAAF to review three

categories of cases. Two are “mandatory” categories:

capital cases and cases sent to the CAAF by the Judge

Advocate General. 10 U.S.C. § 867. While the second

category is “neutral as to which party (an accused or

the Government) may be the one on whose behalf a

Judge Advocate General will act . . . . in practice, most

of the certified issues are submitted in cases where the

8

accused has triumphed in the court below.” United

States v. Caprio, 12 M.J. 30, 31 n.1 (C.M.A. 1981).

Recent experience is consistent with that observation.

Even though the United States prevails in the vast

majority of cases decided by the Courts of Criminal

Appeals, of the twenty cases certified to the CAAF by

a Judge Advocate General during the CAAF’s October

2023 and October 2024 Terms, nineteen were certified

upon request of the Government after losing at a

Court of Criminal Appeals. 1

1 United States v. Hunt, __ M.J. __, No. 25-0257/AF, 2025 CAAF

LEXIS 734 (C.A.A.F. Sep. 2, 2025) (docketing certificate for

review with United States as appellant); United States v.

Mendoza, __ M.J. __, No. 25-0244/AR, 2025 CAAF LEXIS 690

(C.A.A.F. Aug. 20, 2025) (docketing certificate for review with

United States as appellee); United States v. Ixcolgonzalez, __

M.J. __, No. 25-0243/MC, 2025 CAAF LEXIS 685 (C.A.A.F. Aug.

19, 2025) (docketing certificate for review with United States as

appellant); United States v. Armsbury, __ M.J. __, No. 250233/AR, 2025 CAAF LEXIS 655 (C.A.A.F. Aug. 6, 2025) (same);

United States v. Ellis, __ M.J. __, No. 25-0197/AR, 2025 CAAF

LEXIS 481 (C.A.A.F. June 23, 2025) (same); United States v.

Kershaw, __ M.J. __, No. 25-0117/AF, 2025 CAAF LEXIS 408

(C.A.A.F. May 27, 2025) (same); United States v. Rocha, __ M.J.

__, No. 25-0157/AF, 2025 CAAF LEXIS 352 (C.A.A.F. May 5,

2025) (same); United States v. Deremer, __ M.J. __, No. 250158/MC, 2025 CAAF LEXIS 350 (C.A.A.F. May 5, 2025) (same);

United States v. Ford, __ M.J. __, No. 25-0143/AR, 2025 CAAF

LEXIS 306 (C.A.A.F. Apr. 22, 2025) (same); United States v.

Jones, __ M.J. __, No. 25-0141/AR, 2025 CAAF LEXIS 310

(C.A.A.F. Apr. 22, 2025) (same); United States v.

Calvillomagana, __ M.J. __, No. 25-0142/AR, 2025 CAAF LEXIS

315 (C.A.A.F. Apr. 22, 2025) (same); United States v. Malone, __

M.J. __, No. 25-0140/AR, 2025 CAAF LEXIS 299 (C.A.A.F. Apr.

21, 2025) (same); United States v. Serjak, 85 M.J. 407 (C.A.A.F.

2025) (same); United States v. Hennessy, 85 M.J. 396 (C.A.A.F.

2025) (same); United States v. Moore, 85 M.J. 394 (C.A.A.F. 2025)

(same); United States v. Patterson, 85 M.J. 320 (C.A.A.F. 2025)

(same); United States v. Downum, __ M.J. ___, No. 24-0156/AR,

9

The final category of cases is “discretionary.” But

that discretion is limited by Congressional mandate:

the CAAF “shall” review the record in “all cases” that

have been reviewed by a Court of Criminal Appeals

“upon petition of the accused and on good cause

shown.” 10 U.S.C. § 867(a)(3). Discussing that

provision, the CAAF has stated that subsection (a)(3)

“directs this court to review cases which have been

reviewed by a Court of Criminal Appeals and where

there is a ‘petition of the accused’ and ‘good cause

shown.’ The statute clearly establishes that both of

these predicates must exist before the congressional

mandate to review a case arises.” United States v.

Rodriguez, 67 M.J. 110, 114-15 (C.A.A.F. 2009).

In a three-to-two decision, the CAAF grappled with

the discretionary nature of its review when

considering the propriety of an abatement ab initio

due to an appellant’s death. United States v. Rorie, 58

M.J. 399 (C.A.A.F. 2003). The majority found the

CAAF’s “petition authority is more akin to the writ

authority exercised by [this Court], particularly with

respect to the primary sources of appeals, the writ of

certiorari and the petition for grant of review.” Id. at

405. Citing congressional intent, the CAAF adopted

the position that the question of what cases the CAAF

will hear “is a matter of internal management,

properly left to [the CAAF’s] decision in accordance

with guidelines expressed in [the CAAF’s] rules.” Id.

(quoting S. REP. NO. 98-53, at 34 (1983)).

2024 CAAF LEXIS 315 (C.A.A.F. May 14, 2024) (same); United

States v. Davis, __ M.J. ___, No. 24-0152/AR, 2024 CAAF LEXIS

314 (C.A.A.F. May 14, 2024) (same); United States v. Harborth,

84 M.J. 344 (C.A.A.F. 2024) (same); United States v. Flanner, 84

M.J. 303 (C.A.A.F. 2024) (same).

10

Article 67(a)(3), UCMJ, “reflects congressional

intent to provide service members with a significant

opportunity to obtain review by an independent,

civilian tribunal, without requiring our court to grant

full review in every case.” Id. (citing United States v.

Byrd, 53 M.J. 35, 36-37 (C.A.A.F. 2000)); S. REP. NO.

98-53, at 34 (1983)) (emphasis added). The CAAF does

not have the discretion to deny review where good

cause is shown upon a timely petition.

Recently, one judge on the CAAF explained,

“Because we can hear a case does not always mean we

should.” Randolph v. HV, 76 M.J. 27, 35 (C.A.A.F.

2017) (Sparks, J., dissenting). The statute requires

the converse though: where the CAAF can hear a case

because good cause is shown, it must. Rodriguez, 67

M.J. at 114-15.

In equating “good cause” to this Court’s standard

for review, the CAAF created “unfettered discretion

. . . to deny review regardless of the merits of the case.”

Id. at 408 (Effron, J., dissenting). The plain language

of Article 67, UCMJ, does not support such a narrow

construction. As the dissent in Rorie pointed out,

“[c]ounsel familiar with Supreme Court practice

should not confuse the ‘good cause’ standard under

Article 67 with certiorari. Those courts that may

review a case by issuing a writ of certiorari are not

required to hear a case merely because a party

demonstrates viable legal issues requiring relief.”

Rorie, 58 M.J. at 408 (quoting Legal Services, Dep’t of

the Army, Pamphlet No. 27-173, Trial Procedure 247

(1992)) (emphasis added).

For the first time in history, this Court can now

review cases the CAAF “refused to grant.” 28 U.S.C. §

1259. Previously, other than cases that fell within

11

CAAF’s mandatory jurisdiction, this Court could only

review cases where the CAAF granted review—which

inherently meant there was “good cause shown.” See

28 U.S.C. § 1259 (2018). But the CAAF’s abuse of

discretion in applying the “good cause” standard is

now reviewable, as are the underlying issues brought

before it. Granting this petition to correct the CAAF’s

improper construction of its mandatory “good cause

shown” jurisdictional threshold would affect the

CAAF’s consideration of every petition for a grant of

review. The CAAF is not the “supreme court of the

military justice system.” McPhail v. United States, 1

M.J. 457, 462 (C.M.A. 1976). This Court is.

B. SrA Beyer demonstrated good cause.

In his petition for grant of review at the CAAF,

SrA Beyer raised the Rule 412 issue discussed in

Section II, infra. SrA Beyer asserted that both the

military judge and the Air Force Court erred. Because

SrA Beyer made a specific showing of good cause, the

CAAF was statutorily required to review his case. By

declining to review the case, the CAAF abused its

discretion.

II. SrA Beyer made a showing of “good cause.”

The trial judge abused his discretion by denying

the defense motion to admit Rule 412 evidence

while allowing the prosecution to elicit similar

Rule 412 evidence, to the detriment of SrA

Beyer.

Rule 412 is a rule of exclusion providing that

evidence of a victim’s sexual behavior or

predisposition is not admissible, subject to three

limited exceptions. United States v. St. Jean, 83 M.J.

109, 113 (C.A.A.F. 2023). Those exceptions are: (1)

evidence of specific instances of sexual behavior

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between the victim and a third-person to prove that

the third-person is the source of physical evidence; (2)

evidence of specific instances of sexual behavior

between the accused and victim “if offered by the

accused to prove consent or if offered by the

prosecution;”

and

(3)

evidence

otherwise

constitutionally required. Mil. R. Evid. 412(b).

A party intending to offer evidence under [this

rule] must file a written motion at least 5 days

prior to entry of pleas specifically describing the

evidence and stating the purpose for which it is

offered unless the military judge, for good cause

shown, requires a different time for filing or

permits filing during trial.

Mil. R. Evid. 412(c)(1)(A) (emphasis added). “Before

admitting evidence, the military judge must conduct a

hearing, which shall be closed.” Mil. R. Evid. 412(c)(2)

(emphasis

added).

Rule

412’s

procedural

requirements apply to the prosecution and defense.

Mil. R. Evid. 412.

A. The military judge did not follow proper

procedures.

In this case, the military judge abused his

discretion by failing to use correct legal principles.

United States v. Rudometkin, 82 M.J. 396, 401

(C.A.A.F. 2022). At the outset, the military judge did

not follow the proper procedures to admit the

evidence. Specifically, when the prosecution sought

admission of unnoticed, specific instances of sexual

behavior, the military judge did not conduct a closed

session hearing as required by Mil. R. Evid. 412(c)(2).

Instead, the military judge briefly questioned the

Government in front of the jury before admitting the

evidence. R. at 534-35. This is a far cry from the closed

13

session hearing required by the rule. See United

States v. Carista, 76 M.J. 511, 516 (A. Ct. Crim. App.

2017) (“[A]ppellant himself was entitled to notice

before evidence covered by Mil. R. Evid. 412 could be

admitted. Mil. R. Evid. 412(c)(1)(A). Having received

no notice, appellant may justifiably rely on the

absence of notice in planning his trial strategy.”).

The military judge again abused his discretion by

permitting the prosecution to admit Rule 412

evidence, despite the prosecutors’ failure to file a

timely motion required by the rules. While Rule 412

allows a military judge to admit evidence without

notice during a trial, there must be good cause to do

so. Mil. R. Evid. 412(c)(1)(A). Here, the military judge

did not find good cause before admitting unnoticed

and un-litigated Rule 412 testimony during trial. Mil.

R. Evid. 412(c)(1)(A).

Further, the military judge again abused his

discretion and permitted the jury to ask questions

that elicited Rule 412 evidence. For example, the

members asked many questions about condom use,

such as: “(1) did you always use a condom during

sex?”; (2) “was a condom used that night?” App. Ex.

LIII; (3) “you stated that the ‘signal’ for sex was SrA

Beyer getting a condom. Have you had sex with him

previously without a condom?”; (4) “was one used on

the night of the incident?” App. Ex. XLVI. This

evidence was admitted over Defense objections.

It is also clear that the error was prejudicial, as the

prosecution relied heavily upon the implication that a

condom was required for consensual sex in the

relationship. The prosecution even argued in closing:

So, let’s recall when M.L. testified to you all

with respect to consent in the past in the

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relationship. She provided essentially four

things, it will begin with kissing, from there it

would go to some type of foreplay, the third

thing would be a suggestion to someone to get a

condom, and forth she said she typically

shaved.

R. at 814. The prosecution continued by highlighting

it again, saying “there was no condom used.” R. at 814.

Evidence of prejudice is also clear from the amount

and manner of questions posed by the members

concerning this condom use.

The military judge’s decision to permit questions

about specific instances of sexual behaviors, both by

the prosecution and the jury, entirely reshaped the

case. It is evident from the amount and manner of jury

questions that this was a significant point of concern

for the members and had an impact on their

deliberations. The impact on the Defense case was

further complicated by the military judge’s ruling

barring the Defense from eliciting any evidence of

specific instances of sexual behavior of their own, to

include condom use. The military judge committed

prejudicial error, and the Air Force Court and the

CAAF abdicated their responsibility to review that

error.

B. SrA Beyer suffered prejudice.

As a result of the military judge’s rulings, which

allowed M.L. to answer questions that implicated

previously unnoticed and un-litigated Rule 412

testimony, the Defense did not have a chance to

prepare and present a case that demonstrated the

infrequency of condom use during the couple’s prior

consensual encounters. Instead, the members were

left with the distinct impression that, because a

15

condom was not used during the incident in question,

it must have been non-consensual.

It is also clear that the error was prejudicial, as the

prosecution relied heavily upon the implication that a

condom was required for consensual sex in the

relationship. The prosecution even argued in closing:

So, let’s recall when M.L. testified to you all

with respect to consent in the past in the

relationship. She provided essentially four

things, it will begin with kissing, from there it

would go to some type of foreplay, the third

thing would be a suggestion to someone to get a

condom, and forth she said she typically

shaved.

R. at 814. The prosecution continued by highlighting

it again, saying “there was no condom used.” R. at 814.

Evidence of prejudice is also clear from the amount

and manner of questions posed by the members

concerning this condom use.

Therefore, the

prejudicial error.

military

judge

committed

C. The Air Force Court erred in its review of

this issue.

The Air Force Court concluded that the Rule 412

issue lacked merit. Pet. App. 4a. Specifically, the Air

Force Court reasoned that trial defense counsel could

have re-raised its motion to admit Rule 412 evidence

after the Government admitted similar material. Pet

App. 4a. While the military judge did inform trial

defense counsel that they could, at some later time,

attempt to admit additional Rule 412 evidence,

admission was in no way guaranteed. In fact, the

military judge had already ruled that such evidence

16

was inadmissible under Rule 412 and excluded it. R.

at 198-205. As demonstrated by his contradictory

rulings, the military judge believed there was

something different about the prosecution’s evidence

(and the jury’s questions) from what trial defense

counsel attempted to admit.

Second, even if the Air Force Court’s conclusion

was correct, such a conclusion denies the realities of

trial practice. Once M.L. testified that condom use was

a “sign of consent” in their relationship, R. at 534-35,

the trial defense team was placed in an untenable

position. Any attempt to contradict this evidence

would have required: (1) preparing witnesses who

could testify about specific instances of sexual activity

without condoms, without having received prior notice

this would be necessary; (2) seeking a mid-trial

continuance that would have highlighted this issue for

the members and potentially strengthened the

Government’s consent theory; (3) filing a new motion

under Mil. R. Evid. 412 to admit specific instances of

sexual behavior, which would have required a hearing

and likely opposition from both the Government and

victim’s counsel; and (4) risking opening the door to

even more prejudicial evidence about the couple’s

sexual practices.

The suggestion that the Defense could have

overcome these practical and procedural hurdles in

the middle of trial, after the members had already

heard this unchallenged evidence about consent,

ignores the realities of the courtroom. The damage

was done the moment M.L. was permitted to testify

about condom use as a “signal” of consent, and no midtrial remedy could have effectively countered the

prejudicial inference that had been created.

17

CONCLUSION

For the first time in its history, this Court can

review decisions of the CAAF denying review of

petitions for review. Here, the CAAF abused its

discretion by failing to follow its statutory mandate to

review all cases where good cause is shown. Because

SrA Beyer showed good cause through the military

judge’s prejudicial error, this Court can and should

grant review and remand to the CAAF for further

consideration.

Respectfully submitted,

TREVOR N. WARD

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

trevor.n.ward.1@us.af.mil

Counsel for Petitioner