Petition for Writ of Certiorari — Henley v. United States

«eme Court. U

Y)

@01299-Nv 29mm

NO. ___gericg OF THE CLERK

In The

Supreme Court of the United States

+

DAVID R. HENLEY, SR.,

Petitioner,

VS.

UNITED STATES AIR FORCE,

Respondent.

*

On Petition for Writ of Certiorari

To The United States Court of Appeals

For the Armed Forces

*

PETITION FOR A WRIT OF CERTIORARI

.

BARBARA CRAMPTON

Counsel of Record

Crampton & Crampton

505 Lamar Avenue

Wichita Falls, Texas 76307

Phone: (940) 723-9746

ROBERT ESTRADA,

Of Counsel

P.O. Box 2006

Wichita Falls, Texas 76307

Phone: (940) 723-9747

Terr

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Military Judge erred in denying the

defense motion to suppress evidence and a derived

confession as fruits of evidence seized from the

Petitioner's home in violation of the Constitution?

2. Whether allowing evidence of other sexual

misconduct to show propensity, as applied, under

Military Rule of Evidence 404(b), notwithstanding

precedent to the contrary, applied to render a

ruling consistent with legislative intent under

Military Rules of Evidence 413 or 414, adopted

subsequent to the alleged misconduct, violates the

ex post facto prohibition of the Constitution?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW. ......2.00-++:

TABLE OF CONTENGIIG:éic:s<:0scsuesesaonien i

TABLE OF AUTHORITIES...........sescscesesesceeeceseees iv

OPINION SBLOW 06655 cisicccae 1

STATEMENT OF JURISDICTION. ........0.e0ce0e0e0e000 1

STATEMENT ..<ccicscics. 2

REASONS FOR GRANTING THE WRIT........20e00000 5

1. The Lower Court's Finding that a

Substantial Basis Existed to Issue

a Search Warrant, Does Not Render

the Warrant Valid When the Expert's

Testimony Upon Which the Magistrate

Relied Lacks Sufficient Indicia of Reliability... 7

2. The Lower Court's Finding that a Sub-

stantial Basis to Issue a Search Warrant

Automatically Extends to Create a Good

Faith Exception for the Executing Officer

Who Withheld Important Facts Necessary

ee

iii

TABLE OF CONTENTS-Continued

Page

to Render a Neutral Determination of

Probable Cause Somehow Equates to Deli-

berate Indifference to or Ratification of the

Wrongful Act..........-cccceccecerseeseeeneesseceneeeeees 14

3. The Lower Court's Admission of Propensity

Evidence Impermissibly Burdens the Peti-

tioner’s Fundamental Rights of Proof Beyond

a Reasonable Doubt and to the Presumption

of Innocence and the Admission of Propensity

Evidence in this Case Violates the Constitution

Prohibiting Against Ex Post Facto Application

iv

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES

Berger v. New York, 388 U.S. 41 (1967).........2.2++e00 13

Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620,

SOD Ee eT i ckkcciccsbivcicndnsnaticens 19

Daubert v. Merrell Dow Pharmaceuticals, Inc.

ee Se Ce aiedccaisintcnschediddtnbeckhverecices oo]

Kuhmo Tire Co. v. Carmichael, 526 U.S. ,

Rak le I eit cccaiaesinnce teknbatiecionas g

Illinois v. Gates, 462 U.S. 213 (1983).............ceeeeeeee 9

United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405,

Be EGS G77 ipa vicccnkestscsesasecscescsnn 14

Old Chief v. United States, _S.Ct.___ (1997)

Oe ic EY POs BIOF Biv kcccticnceccndektbsediiscmne 17

Rugendarf v. United States, 376 U.S. 526 (1964)........ 13

Sgro v. United States, 287 U.S. 206, 210-11 (1932).... 13

In Re Winship, 90 S.Ct. 1068 (1970)........0.s0cece000: 22

Vv

TABLE OF AUTHORITIES-Continued

Page

MILITARY CASES

United States v. Brooks, 22 M.J. 441, 444 (C.M.A. 1986) 20

United States v. Gamble, 27 M.J. 298 (C.M.A. 1988)... 23

United States v. Henley,

53 M.J. 488, 491 (CMA 2000)........:.sceeceeeeereeeees 9

United States v. Mirandes-Gonzalez,

26 M.J. 411, 413 (C.M.A. 1988) ........ceeeeeeereeeeneenes 20

United States v. Sam,

46 C.M.R. 124, 129 (C.M.A. 1973).....:2ceceeerenseeeees 11

United States v. Wright, 53 MJ 476 (2000)...........+++- 13

OTHER FEDERAL CASES

United States v. Harvey, 2 F.3d 1318 (3"4 Cir. 1993)........8

United States v. Lacy, 119 F.3d 742 (9 Cir. 1990)

cert. denied __ U.S. _, 118 S. Ct. 1571 (1988. ......... 7

United States v. Martin, 833 F.2d 752 (8" Cir. 1987)

cert. denied _ U.S. __, 110 S. Ct. 1793 (1988) ...... 15

United States v. Ortiz, 857 F.2d 900 (2"4 Cir. 1988)

cert. denied, 489 U.S. 1070 (1989)........:.seeeseeeeevees 21

vi

TABLE OF AUTHORITIES-Continued

Page

United States v. Simpkins, 914 F.2d 1054 (8 Cir. 1990). 8

United States v. White, 890 F.2d 1413 (8 Cir. 1989).....16

United States v. Webber, 923 F.2d 1338 (9% Cir. 1990),

amended and reh’g denied (1991)................seeee+. 4

LEGAL PERIODICALS

Bryden, David P. & Park, Roger C., “Other Crimes

Evidence in Sex Offense Cases,

7B MABALL.REV.SED, S72... cccccccsescccoscsccscceseen 23

CONG. REC. H8991-92, Aug. 21, 1994

(floor Statement of Rep. Susan Molinari reprinted in

FED. CRIM. CODE & R. 244 (West Publishing Co. ed.,

Duane, James;, The New Federal Rules of Evidence on

Prior Acts of Accused Sex Offenders: A Poorly Drafted

Version of a Very Bad Idea, 157 FED. R. DECISIONS 95,

Goldstein, Seth,

The Sexual Exploitation of Children.............. 11

TABLE OF AUTHORITIES-Continued

Page

Hansen, Mark, “Deadly Race Cards?” ABA Journal,

Chicago, IL (September, 2000).......+---++++++++++ 13

H. Kaplan & B. Sadock, COMPREHENSIVE TEXT-

BOOK OF PSYCHIATRY (6" Ed. 1995)......--- 10

Lanning, Kenneth V. Supervisory Special Agent,

Behavioral Science Unit, Federal Bureau of

Investigation, FBI Academy, Quantico, VA

“Child Molesters: A Behavioral Analysis For Law

Enforcement Officers Investigating Cases of Child

Sexual Exploitation” National Center for Missing

and Exploited Children: 1992.........--++ss+ssrssssee 11

Saltzburg, S., Schinasi, L. and Schlueter, D.

MILITARY RULES OF EVIDENCE MANUAL 362

(2d ed. 1986) (Editorial Comment to

MIL. R. EVID. 404(B).........2-seceeeeeeeeceeseeeeseesees 21

Sheft Mark A. Federal Rules of Evidence 413:

A Dangerous New Frontier,

33 AM. CRIM. L. REV. 57, 73 (1995)....--+-++++++0+ 22

1A J. Henry Wigmore, EVIDENCE IN TRIALS AT COMMON

LAW Section 58.2 (1983).......-..sssceeeeeeeeenererseeees 23

viii

TABLE OF AUTHORITIES-Continued

Page

Wink, R. Mir. & Carnes, T. Capt.,

New Rules for Sex Offenses:

Propensity Evidence No Longer Prohibited ?,

The Reporter, Periodical 51-1, Vol. 24,

No. 1, p. 8, March, 1997........cccecccscsocscccccccessesss 21

STATUTES, LAWS, RULES

MD IB TAG vcctcnscssisiecscnsnackesisisnstine taunts 1

MILITARY RULES OF EVIDENCE 403, 413, & 414....... 4

1

PETITION FOR WRIT OF CERTIORARI

The Petitioner, David R. Henley, Sr.,

respectfully prays that a writ of certiorari issue to

review the August 17, 2000 opinion of the United

States Court of Appeals for the Armed Forces.

*

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Armed Forces dated August 31, 2000 is

reported at 53 MJ 488 (2000) and is reprinted in the

Petition Appendix (“App.”) beginning at App. 1. No

petition for rehearing was sought. The opinion of the

United States Air Force Court of Criminal Appeals

dated August 17, 1998, is reported at 48 M. J. 864 (1998)

and is reprinted beginning at App. 18.

4

STATEMENT OF JURISDICTION

Petitioner seeks review of the United States

Court of Appeals for the Armed Forces’ Opinion dated

August 31, 2000.

The United States Supreme Court has

jurisdiction to review cases from the Court of Appeals

for the Armed Forces by virtue of 28 U.S.C.A. 1254.

*

STATEMENT

This case presents the vexing reality of the

ramifications of amendments to the Federal Rules of

Evidence by the legislature to serve the interests of

politics by unnecessarily creating a lowered standard

of evidence in the prosecution of an unpopular social

evil.

The off-shoot of Federal Rules of Evidence 413 and

414 permitting propensity evidence to be considered

during the guilt/innocence phase of a trial involving

alleged sex crimes are impermissible burdens to the

fundamental right of the accused to proof beyond a

reasonable doubt and the fundamental right to the

presumption of innocence.

The reality of these impermissible burdens on

fundamental rights are even more apparent when a sex

crime is prosecuted for offenses against children, only

an uncharged, extraneous wrong alleged in this case.

In cases involving children, our society’s instinct has

always been to punish, more so than in other crimes.

Thus, a belief we protect other children by lowering

the standards of evidence rises from an appeal to

emotion that too often blinds reason, permitting the

innocent to be ensnared. .

As the triers-of-fact, the judge and the jury stand as

Captains at the bulwark of the Constitution to ensure

the law is followed by the accused and the accuser, as

well.

But good men and women cannot stand by and do

nothing, allowing injustice to occur when the Captain

abandons the ship, convicting the accused while using

ex post facto laws or admitting evidence obtained in

violation of the protections of the United States

Constitution.

The Respondent was charged with consensual oral

sodomy, two instances of committing indecent acts,

and conduct unbecoming an officer and a gentlemen.

Even though the Special Agent for the Office of

Special Investigations! possessed sufficient evidence to

obtain a warrant for arrest, he also sought a warrant to

search the Respondent's home for objects of criminal

activity associated with uncharged offenses that were

last seen five years ago in another state.

This Special Agent, in making application for the

warrant, concealed that evidence from the magistrate

by presenting only his affidavit and the supporting

affidavit of an OSI Investigative Psychologist. The

testimony presented, resulting from a collaboration to

conform the facts presented between the Special Agent

and the Psychologist that disguised “a hunch” as an

expert opinion in order to obtain the warrant to search

in this case.

1 Hereinafter referenced as “OSI”.

Yet, the military judge for the court-martial denied

the Respondent's motion to suppress the evidence

seized and the derivative confession. The court found

that even if probable cause was lacking that the very

official executing the warrant who concealed facts and

manipulated the opinions reflected in the affidavits

acted in good faith.

At trial, testimony alleging past sex crimes were

admitted for consideration by the jury as part of the

prosecution’s case in chief.

On appeal, the lower court held the testimony

admissible under Military Rules of Evidence Rule

404(b). 2

But the holding in applying Rule 404 was

inconsistent with the lower court's application of the

law regarding testimony to uncharged crimes prior to

the enactment of Rules 413 and 414.

_This Court has ruled that the use of ex post facto

rules intended to facilitate prosecution violated a

Respondent's constitutionally protected rights.? Such

is the case made to appear here.

2 Except when otherwise indicated, Military Rules of

Evidence will be hereinafter referenced as Rule.

3 Carmell v. Texas. 529 U.S. 513, 120 S.Ct. 1620, 146

L.Ed.2d 577 (2000).

5

Respondent appealed to the United States Air Force

Court of Criminal Appeals and the United States Court

of Appeals for the Armed Forces which largely agreed

with the reasoning and results of the military court-

martial’s judgment with one exception requiring

- administrative correction of an ex post facto collection

of forfeitures not included in the sentence of the court

martial.

REASONS FOR GRANTING THE WRIT

1. The Lower Court's Finding that a Substantial

Basis Existed to Issue a Search Warrant, Does

Not Render the Warrant Valid When the

Expert’s Testimony Upon Which _ the

Magistrate Relied Lacks Sufficient Indicia of

Reliability.

r I The Lower Court's Finding that a Substantial

Basis to Issue a Search Warrant Automatically

Extends to Create a Good Faith Exception for

the Executing Officer Who Withheld

Important Facts Necessary to Render a Neutral

Determination of Probable Cause Somehow

Equates to Deliberate Indifference to or ~-

Ratification of the Wrongful Act.

3. The Lower Court’s Admission of Propensity

Evidence Impermissibly Burdens the

Petitioner's Fundamental Rights of Proof

Beyond a Reasonable Doubt and to the

Presumption of Innocence and the Admission

of Propensity Evidence in this Case Violates

the Constitutional Prohibition Against Ex Post

Facto Application of the Law.

This Petition results from a series of decisions

during the military court-martial affecting

fundamental rights for which the reasoning provided

and affirmed smacks of ratification of wrong-doing by

government officials.

Moreover, by adopting legislation permitting

the blanket introduction of propensity evidence in sex

offense crimes, considered at one time unconstitutional

by the Court, denies important protections to due

process. The purpose of those protections now

denied, preserved the fundamental right of the accused

to a fair and impartial trial. The new evidentiary rules

throw open the door to irrepairable prejudice to the

accused’s right to a presumption of innocence, as well

as the denial of the right, prior to imposing

confinement, to proof beyond a reasonable doubt.

Such resolution, particular where, as here,

involves more than three hundred years of Anglo-

American jurisprudence speaks of an invidious wrong

which cannot be viewed as other than subversive to

the rights of equal protection and due process of the

law long protected under the Constitution.

I. Probable cause to issue a search warrant did

not exist at the time because the objects

associated with the criminal acts had not been

seen for five (5) years and had never been seen

in Texas or the residence where the search was

conducted.

A search warrant must describe the place to be

searched or things to be seized with sufficient

particularity, taking account of circumstances of a case

and types of items involved, and must be no broader

than the probable cause upon which it is based.‘

The total circumstances in the instant case, not

made known to the issuing magistrate forced him to

rely on affidavits which concealed the facts were too

stale to justify probable cause’ in determining to issue

the warrant.

These buried facts also reflected that the alleged

criminal activity had ceased several years before.®

Thus the circumstances were broader than the

probable cause upon which the warrant was based

4 An affidavit describing controlled delivery of child

pornography and generally describing proclivities of

pedophiles was insufficient to establish probable cause to

search defendant’s home for anything but the picture sets

that arrived as a result of the controlled delivery. United

States v. Webber, 923 F.2d 1338 (9% Cir. 1990), amended and

reh’g denied (1991).

5 “The cases cited by the Government involved gaps

of less than two years between the sighting of evidence and

application for a warrant. See, United States v. Lacy, 119 F.3d

742 (9% Cir. 1997); United States v. Harvey, 2 F.3d 1318 (34

Cir. 1993.” A-493 (quoting EFFRON, J. (concurring in part

and in the result)).

6 The criminal activities in the other locations

described ceased in 1990 although the warrant was issued

in 1995. Vol. I, Record of Trial, 59.

9

because the place to be searched was not the place

where the evidence was last seen.”

Probable cause to believe that incriminating

evidence was present in a place other than the place to

be searched five years earlier, does not mean there is

probable cause to believe that incriminating evidence

will be present in another state and another place five

years later.®

The lower court correctly ruled that a magistrate

may not held to technical rules of evidence in

determining to issue a search warrant even when

denied facts important to a neutral and detached

probable cause determination. An invalid warrant

may issue without fault.'°

That basic gatekeeping determination, however,

is the duty of the military judge during the motion to

suppress. Kuhmo Tire Co. v. Carmichael, 526 U.S. __,

143 L. Ed. 2d 238, 249-251 (1998) (citing Daubert v.

” See, Webber, supra fn. 4

® Id.

9 On review the court looks to whether the

magistrate had a “substantial basis” under the information

presented. Illinois v. Gates, 462 U.S. 213,233 (1983); United

States v. Henley, 53 M.J. 488, 491 (CMA 2000).

10 United States v. Simpkins, 914 F.2d 1054 (8% Cir.

1990).

10

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591

(1993)). As recently clarified by the Supreme Court,

the basic gatekeeping determination employing

Daubert’s general principals to establish evidentiary

reliability applies to all expert testimony.

The judge must determine whether the

prosecution showed by clear and convincing evidence

that expert was qualified''! to render the opinion

offered and whether those statements offered in

support of the application for warrant are relevant and

reliable, prior to considering the evidence.’ That

important duty is no more, no less, than a

determination as to whether the expert in rendering

his or her opinion employed the same level of

intellectual rigor that characterizes the practice of an

expert in the relevant field, so that the trier of fact will

be assisted by the opinion.

However, the evidence in this case fails to show

the OSI psychologist considered individualized facts

and data necessary to psychiatric protocol to

independently develop a diagnosis.!> Further, her

11 See also, United States v. Lacy,119 F.3d 742, 745 (9%

Cir. 1997) cert denied, _ U.S. __, 118 S.Ct. 1571 (1988).

12 Rule 702.

13 See, H. Kaplan & B. Sadock, COMPREHENSIVE

TEXTBOOK OF PSYCHIATRY (6% Ed. 1995). This leading

text on psychiatry suggests five propositions for a

11

diagnosis, categorizing the Petitioner “as ‘sexually

indiscriminant’ or ‘try-sexual’ (meaning they will try

anything plus everything sexual)”" is characterized as

Situational Child Molesters, '5 not a ‘classic pedophile’

as subsequently communicated.'¢

It becomes apparent that the psychologist’s

diagnosis was changed!’ to pave the way for a claim of

reliance by the Special Agent upon a isolated excerpt

psychiatrist to observe in making a diagnosis: (1) an

accurate medical and social history must be obtained; (2)

the historical data must be obtained not only from the

client, but from independent sources also; (3) a thorough

physical (including neurological) examination must be

conducted; (4) appropriate diagnostic studies - for example,

EEG or CT scans or psychological testing - must be

undertaken in light of the history and physical examination;

and (5) the standard mental status exam cannot be relied on

in isolation to assess organic impairment.

14 App. 17.

15 Lanning, Kenneth V. Supervisory Special Agent,

Behavioral Science Unit, Federal Bureau of Investigation,

FBI Academy, Quantico, VA “Child Molesters: A Behavioral

Analysis For Law Enforcement Officers Investigating Cases of

Child Sexual Exploitation” National Center for Missing and

Exploited Children: 1992, p. 3.

‘© App. 17.

” App. 21.

ie

Pree

ee

merges

A ‘:

12

from a treatise!* to render his opinion as that of an

expert, rather than a hunch which would have

precluded issuance of the warrant.'? The changed

diagnosis was necessary for the Special Agent to

present a checklist obtained from a source other than a

treatise as related to the magistrate so that the accused

was now a Preferential Child Molesters or “ pedophile”

to support his testimony relating probable cause to

search.”

Thus, not only did the OSI psychologist fail to

employ the same level of intellectual rigor that

characterizes the practice of a ‘profiling’ expert in the

relevant field, she failed to exercise independent,

professional judgment.

'8 Goldstein, Seth, The Sexual Exploitation of

Children.

*® See, United States v. Sam, 46 C.M.R. 124, 129

(C.M.A. 1973).

20 On cross-examination during the hearing on the

Motion to Suppress, it was disclosed that the Special Agent

never actually read the treatise cited above but relied upon

excerpts of that book from an article that included

information about profiling for search warrants. Vol. I,

Record of Trial, pp. 63-64.

21 See, Lanning, supra fn. 15, which identifies factors

that include:

13

Also, the evidence shows the OSI psychologist

failed to consider a sufficient number of factors

necessary to “profile” the Petitioner.2! Furthermore,

some scientists and scholars of the law consider it

“ludicrous to attempt to draw any conclusions about

an individual from general data about a particular

group.”

A finding of probable cause to search must be

based on a determination that certain objects are

connected with criminal activity and these objects are

1. Long-Term and Persistent Pattern of Behavior-

sexual abuse in background, Limited social

contact as teenagers...

2. Children as Preferred Sexual Objects, Over 25,

single, never married; Lives alone or with

parents; Limited dating relationships if not

married; If married, “special” relationship with

spouse; Excessive interest in children; Associates

and circle of friends are young; Limited peer

relationships; Age and gender preference...

3. Well-Developed Techniques in Obtaining

Victims...

4. Sexual Fantasies Focusing on Children...

22 Quoting Professor Earl Martin, Texas Wesleyan

University School of Law, who also states, “Any good

scientist would tell you that’s highly inappropriate.” This

statement, commenting on the use of profiles related to

testimony to predict future dangerousness in light of the

June 5, 2000, decision of this Court in Saldono v. Texas,

applies equally to the case at hand. See, Hansen Mark,

Deadly Race Cards?, ABA Journal, Chicago, IL: Sept. 2000.

-

14

currently located a “particularly” described place. See,

Sgro v. United States, 287 U.S. 206 (1932) (it is manifest

that the proof must be of facts so closely connected to

the time of the issue of the warrant as to justify a

finding of probable cause at that time); See also,

Rugendarf v. United States, 376 U.S. 526 (1964); and

Berger v. New York, 388 U.S. 41 (1967).

The proof of facts to support an issue of

probable cause also requires reliable evidence rather

than a hunch, as is evidenced in this case, so that the

fundamental rights of all persons, including the

Petitioner, against unlawful seizure as protected under

the Fourth Amendment to the United States

Constitution remain inviolate to an unauthorized

exercise of government powers.

II. The seized evidence and derivative confession

should have been excluded, because the

executing OSI Agent acted unreasonably in

preparing the affidavit presented to the

magistrate by withholding facts important to a

neutral and detached determination,

precluding admission under the good faith

exception.

The lower court then went on to state that even if

the warrant was not based upon probable cause, the

15

evidence could have been admitted under the Leon

“good faith” exception.

It is acknowledged that the purpose of the

exclusionary rule is to deter police misconduct is

generally not served by suppression of evidence seized

by an officer acting in objective good faith reliance on a

facially valid search warrant.”

However, the military judge lept from a substantial

basis finding to the good faith exception without

exercising her duty to ensure the expert testimony

supporting the warrant application was reliable.

°° Four situations where an officer’s reliance on a

warrant would be unreasonable as outlined in Leon are:

1. the affiant included information in the affidavit

that he “knew was false or would have known

was false except for his reckless disregard of the

truth. And that information misled the issuing

judicial officer;

2. the issuing judge abandoned his neutral judicial

role;

3. the warrant was based on an affidavit with so

few indicia of probable cause that an official

belief in its validity would be unreasonable; and

4. the warrant itself was so “facially deficient...

that the executing officers could not reasonably

rely on its validity. 468 U.S. 897, 923 (1984).

ae

16

In Leon, this Court identified four situations in

which an officer's reliance on a warrant would be

unreasonable. The court does not state this list is

exclusive.

The lower federal circuit courts have in assessing

the objective good faith of police officers, looked to the

“totality of the circumstances, including any

information known to the officers but not presented to

the issuing judge.” United States v. Martin, 833 F.2d

752, 756 (8th Cir. 1987) cert denied, __ U.S. ___, 110 S.

Ct. 1793.

\ . instances of unreasonable conduct are not

limited to allegations that the affiant gave false

information or of judicial misconduct on the part of the

issuing judge, the reviewing court's inquiry is not

limited to these four exceptions but also includes

whether “an objectively reasonable officer could have

believed the seizure valid.” United States v. White, 890

F.2d 1413, 1419 (8th Cir. 1989).

By limiting its review as to whether false

allegations or judicial misconduct occurred the lower

court failed to consider those factors assessing

unreasonable conduct found in Webber.2° There, the

federal circuit court determined that search warrant

must be no broader than the probable cause on which

it is based. As applied in this case, it is apparent that

ie.

°° Supra fn. 4.

17

while the Special Agent did not give false information,

he did not voluntarily bring material information

before the magistrate showing that the place to be

searched was different from the locations described in

the affidavit and therefore exceeded the scope of the

probable cause.

Another factor pertinent to this case considered by

the Webber court was the determination of whether a

warrant was obtained reasonably. That is whether the

Special Agent was operating under a time pressure

when he prepared the warrant application. Id.

In Webber, the government official had complete

control over the time of the search and acted entirely

unreasonably in preparing the affidavit presented

resulting in suppression of the evidence. Id.

Likewise, in this case, there was no time pressure

causing the production of the flawed affidavits in this

case, as the criminal activity upon which the warrant

relied had ceased.”

Thus, as the government, for reasons similar and

even greater than those found by the Ninth Circuit in

_ Webber, had no probable cause to believe that

incriminating evidence would be present at the

Petitioner's Texas residence.

*” Vol I, Record of Trial, supra fn. 6.

18

In lieu thereof, the OSI Special Agent relied upon

an apparent collaboration® with the OSI Investigative

Psychologist who by all evidence was willing to revise

her diagnosis”? so that the Special Agent could then

include a general checklist in his affidavit application

from an article by a “Staff Judge Advocate” on

profiling for search warrants rather than the treatise

related in the affidavit

Together, the OSI Special Agent and © OSI

Psychologist omitted any report to the magistrate of

the huge time gap and acted to create the appearance

of probable cause to search through generalizations to

allow the Special Agent to act on a hunch rather than

taking the available time to gather reliable evidence

28 See, App. 21. Subsequent to the memo issued by

the Investigative Psychologist, her opinion changed solely

in reliance on the information provided by the Special

Agent to opine the accused was a “classic pedophile.”

29 A “classic pedophile” prefers children as sexual

objects e.g. a Preferential Child Molester. See, Lanning,

supra fn. 9. Since the information relied upon by this

psychologist was limited to witness statements and those

statements indicated the Petitioner participated in

heterosexual relationship, this willingness to conform her

opinion evidences the absence of any reasonable conduct in

the preparation of the affidavits to obtain the “expert

warrant.”

*° See, Voll, Record of Trial, 64 and App. 22.

19

and objective data before seeking the search warrant.

Webber, supra.

The Government in the person of the OSI

Special Agent did not act in good faith in relying on a

warrant that sought items which he knew, as

evidenced by his orchestrated effort to avoid bringing

forward the stale facts,*! lacked probable cause.

_ Since the government had complete control over

the timing of the search, the Special Agent acted

unreasonably in preparing the affidavit presented, the

seized evidence that should have been suppressed.

III. The use of propensity evidence impermissibly

burdens the Petitioner's fundamental rights of

proof beyond a reasonable doubt and to the

presumption of innocence and the use of

propensity evidence in this case violates the

constitutional prohibition against ex post facto

application of the laws.

The lower court has rendered a decision raising

what will be a recurring issue, conflicts between laws

and rules existing at the time of the offense and those

existing at the time of the court martial.

*. Although the sworn statements of the Henley victims

relating events that were alleged to have occurred as

children, these statements were only “available” and not

presented to the magistrate. App. 22.

20

The holding also conflicts with the subsequent

decision of the United States Supreme Court under

similar circumstances, the ex post facto application of

an amended evidentiary rule. Carmell v. Texas. 529

U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).

The appellate court ruled that the Military Judge

did not err in allowing evidence of other crimes,

wrongs or acts, under Rule 404(b), without the same

stringent analysis, discussed in detail below,

previously applied by the court at the time the alleged

offenses occurred.

By stating the testimony to uncharged offenses

could have been admitted under Rule 414, the lower

court apparently conformed its holding to encompass

the ex post fact application of law to offenses occurring —

before the effective dates of the rules to show

propensity were under Fed. R. Evid. 413, or 414.

Prior to the adoption of the Military Rules of

Evidence, the reception of ‘uncharged misconduct’ into

evidence was strictly limited. The Government was

required to show that there was a nexus in time, place,

and circumstances with the charged crime; that the

evidence of the accused’s participation was plain, clear

and conclusive; and, that the probative value of the

evidence far outweighed the potential potential

prejudicial impact.” United States v. Mirandez-Gonzales,

26 M.J. 411, 413 (C.M.A. 1988) (quoting United States v.

Brooks, 22 M.J. 441, 444 (C.M.A. 1986)) (emphasis

added).

21

Because this decision departs from _ historic

protections of due process as applied by the Court of

Appeals for the Armed Forces,*? and because Rules 413

and 414 are the very embodiment of a broad talismanic

incantation of admissibility, the court has relied upon

the reasoning of Saltzburg in rendering its decisions:

“It is common for the prosecution to use

shorthand expressions like modus operandi,

common plan or scheme, etc. to account for an

offer of evidence of other acts. A trial judge

must be certain to make the prosecution state

exactly what issue it is trying to prove in order

to see whether the evidence is probative,**

how probative it is, and whether it should be

admitted in light of other evidence in the case

and the ever present danger of prejudice.” S.

Saltzburg, L. Schinasi, and D. Schlueter,

MILITARY RULES OF EVIDENCE MANUAL 362 (fn.

Omitted) (2d ed. 1986), (Editorial Comment to

MIL R. Evib. 404(b).

32 Hereinafter referenced as “CAAF.”

33 The past parental coercion, as suggested, is merely

another shorthand expression for propensity. Further, the

testimony was merely propensity evidence at the time it

was Offered, as a rebuttal to the defense would only become

admissible after a claim by the defense of mistaken identity

and consent, not as part of the prosecution’s case in chief.

U. S. V. Ortiz, 857 F.2d 900, 902-04 (2d Cir. 1988) cert. denied,

489 U.S. 1070 (1989).

22 oe

The Petitioner respectfully submits that

fundamental rights are implicated in the

amendment to the rule itself:

First in overturning over 300 years of Anglo-

American jurisprudence, the legislature may well

have burdened a fundamental right not to be

convicted on the basis of propensity evidence.

Alternatively, if freedom from conviction on the

basis of propensity is not itself a fundamental right in

sex offense cases, use of propensity evidence may

nonetheless impermissibly burden the acknowledge

fundamental rights of proof beyond a reasonable

doubt and the presumption of innocence.*©

If the rules burden a fundamental right, then strict

judicial scrutiny must be applied, and Rules 413 and

414 will survive only if necessary to effectuate a

compelling government interest.

Likewise, it is also questionable whether Rules 413

and 414 would meet a test of rational relationship to a

legitimate end, if, as stated, the primary reasons are to

protect the public by successfully prosecuting sex

offenders. The same public interest in successful

prosecution is not absent in other offenses.

34 Wink, R. Mjr. & Carnes, T. Capt., New Rules for Sex

Offenses: Propensity Evidence No Longer Prohibited?, The

Reporter, Periodical 51-1, Vol. 24, No. 1, p. 8, March, 1997.

35 Id. (quoting In re Winship, 90 S. Ct. 1068 (1970).

\

Se

23

Since statistics show that federal prosecutions of

sexual offenses garner a higher conviction rate than all

other classes of violent crime,” the rule change

affecting the Petitioner's right to due process serve

neither a compelling or important interest nor are the

means tailored to justify a legitimate end.

Likewise recidivism rates do not clearly

demonstrate sex offenders have either a consistently

higher or lower recidivism rates than other violent

offenders.*

In fact, the core assertion by the drafter of these

new rules is that a past sexual offense is always highly

probative in determining whether an accused

a

37 From June 1991 to June 1992, the federal

conviction rate for sex offenses was 84%, significantly

higher than that for homicide (75.8%) and assault (64.7%).

In fact, the rate is higher thant the rate for convictions in all

other violent crimes cases combined (82.9%). Id. (citing

Sheft, Mark A, Federal Rules of Evidence 413: A Dangerous

New Frontier, 33 AM. CRIM. L. REV. 57, 73 (1995) (quoting 1A

J. Henry Wigmore, EVIDENCE IN TRIALS AT COMMON LAW

Section 58.2 (1983); Old Chief v. United States, __S. Ct. __

(1997) WL 3230 (7 Jan. 1997) and Duane, James; The New

Federal Rules of Evidence on Prior Acts of Accused Sex

Offenders: A Poorly Drafted Version of a Very Bad Idea, 157

FED. R. DECISIONS 95, 96 (1994).

38 Bryden, David P. & Park, Roger C., Other Crimes

Evidence in Sex Offense Cases, 78 Minn. L. Rev. 529, 572.

24

committed a charged offense, so that these rules would

now resolve what was before the amendment

unresolvable swearing matches.”

To the point, the CAAF rejected this very basis for

admission of propensity evidence in 1988. See, United

States v. Gamble, 27 M.J. 298 (C.M.A. 1988) —

omitted).

The lower court's adjustment to accommodate the

new evidentiary rule, applying a less stringent of

scrutiny in applying Rule 404(b) to avoid prejudice to

the rights of the accused is apparent.

The additional issue raised at trial and on appeal,

but left without answer by the lower court, was

whether the application of Rules 413 and 414 in this

case violate the constitutional prohibition against the

application of ex post facto rules that alter “the legal

rules of evidence and allow less, or different, testimony

than the law required at the time of the commission of

the offense in order to convict the offender.”

Despite the lower court's failure to rule, the

Supreme Court has since answered the issue of this

type of amendment to an evidentiary rules as violating

the ex post facto clause of the constitution. See Carmell

v. Texas, supra. This Court has held that an

% Wink, R. Mjr., supra fn. 17 (citing Cong. Rec.

H8991-92, Aug. 21, 1994 (floor Statement of Rep. Susan

Molinari reprinted in Fed. Crim. Code & R. 244 (West

Publishing Co. ed. 1996)).

wencanes ee

25

amendment to a evidentiary rules that alters the rules

in a way advantageous only to the State to facilitate an

easier conviction, as in this case, violates the

constitutional prohibition against “ex post facto”

laws).

¢-

“© The facts in this case show the prior bad acts

testimony admitted into evidence occurred on or before

1990 before the adoption of the MILITARY RULES OF

EVIDENCE.

26

CONCLUSION

When set in motion, the government, awesome

in its police power, rapidly gains speed and only the

law of the land, as enforced by the courts, reins in any

unrestrained exercise of the ability to enter homes to

make seizures of property in violation of the Fourth

Amendment to the United States Constitution.

Likewise, the Fifth Amendment mandating due

process of law creates specific duties for a judge and

requires that our government officials abide by the law

so that the fundamental right to a fair and impartial

trial of the accused is ensured.

The inescapable conclusion is that the court

below overlooked duties permitting probable cause to

search a particular place to reach across state and

national boundaries and extending the time frame

under which probable cause can continue to exist.

The unreasonable extreme permitted in this search was

that of five years.

Equally offensive is the denial by the lower

court of those protections precluding the application ex

post facto law held unconstitutional by this Court.

That being so, the United States Court of

Appeals for the Armed Forces was mistaken and our

government rather than enforce the law, ratified the

trammeling of fundamental rights that should have

been protected.

27

This case, in large measure, reflects the struggle

of the lower courts to apply standards of objective

reasonableness and reliability to expert testimony as

well as the struggle in assessing whether those

government officials reach beyond their authority in

the exercise of an awesome police power.

More importantly, the circumstances of this case

beg for ‘an examination of the Rule of Evidence,

adopted by the Military, relating to the use of

propensity evidence to determine whether that Rule

violates the Constitution of the United States.

As such, this case offers a remarkable

opportunity to bring order out of chaos and should,

therefore, be accepted for plenary review.

Dated: Wichita Falls, Texas, February 5, 2001.

Respectfully submitted,

SSeut /y

Ub-@ ) 2 Vii, ee

BARBARA CRAMPTON

w/ permission

501 Lamar Avenue

Wichita Falls, Texas 76307

Phone: (940) 723-9749

App. |

APPENDIX

UNITED STATES, Appellee,

v.

David R. HENLEY, Sr., Captain,

U.S. Air Force, Appellant.

No. 99-0094.

Crim. App. No. 32551

U.S. Court of Appeals for

The Armed Forces

Argued Oct. 20, 1999.

Decided Aug. 31, 2000.

Accused was convicted by general court martial,

Linda S. Murnan, J., of oral sodomy, indecent acts, and

conduct unbecoming an officer. The United States Air

Force Court of Criminal Appeals, 48 M.J. 864, affirmed.

Review was granted. The United States Court of

Appeals for the Armed Forces, Cox, Senior Judge, held

that: (1) victims’ testimony about uncharged sexual

abuse that occurred outside statute of limitations was

admissible as "other crimes, wrongs, or acts;" ”2)

search warrant for accused's residence was supported

by probable cause, and evidence could be admitted

under "good faith" exception to the warrant

requirement in any event; (3) military judge did not

abuse her discretion in denying challenge for cause to

App. 2

court member based on member's friendship with two

individuals who were victims of sexual abuse; (4)

guilty finding on conduct unbecoming an officer

charge was supported by evidence of accused’s

possession of nude photographs of children and

adolescents; and (5) accused failed to establish

ineffective assistance claim.

Affirmed.

Effron, J. filed opinion concurring in part and iri tiie

result.

1. Military Justice Key 1028

In general court-martial on charges of oral sodomy,

indecent acts, and conduct unbecoming an officer,

victims’ testimony about uncharged sexual abuse that

occurred outside the statute of limitations was

admissible as “other crimes, wrongs, or acts,” and

would also be admissible to show accused’s similar

sexual molestation of his children. Military Rules of

Evid., Rules 404(b), 414.

2. Military Justice Key 1420

Court of Appeals for the Armed Forces reviews

military judge’s ruling on the admissibility of evidence

under an “abuse of discretion” standard.

App. 3

3. Military Justice Key 1069

Magistrate had substantial basis for concluding

that search of accused’s home would uncover evidence

of wrongdoing, and there was probable cause to issue

warrant, based upon information presented to

magistrate, including expert testimony and affidavits

from accused’s son and daughter that accused had

shown them pornographic materials and that they had

seen the materials since the time they had been used to

facilitate the abuse, despite accused’s contention that

information provided to magistrate was stale and

incomplete, absent evidence that the materials had

been seen in the last five years.

4. Military Justice Key 1419

In determining whether search warrant was

properly issued, standard of review applied by Court

of Appeals for the Armed Forces is whether the

magistrate had substantial evidence in the record to

support his decision issuing the warrant.

5. Military Justice Key 1046

Even if search warrant for accused’s residence was

not based upon by probable cause, evidence could be

admitted under “good faith” exception to the warrant

requirement, where agents believed they were

executing a valid warrant and did not act outside of

scope of the warrant they possessed.

App. 4

6. Military Justice Key 884.1

In general court-martial on charges of oral sodomy,

indecent acts, and conduct unbecoming an officer,

involving accused’s sexual abuse of his children,

military judge did not abuse her discretion in denying

challeng for cause to court member based upon actual

bias, nor did judge err in refusing to excuse the

member because of any “implied bias,” premised on

member's friendship with two individuals who were

victims of sexual abuse. R.C.M. 912 (f)(1)(N).

7. Military Justice Key 1420

Military judge’s denial of a challenge for cause to a

court member is reviewed for an abuse of discretion.

8. Military Justice Key 884.1

Question of court member's impartiality is largely

concerned with whether the member can judge the

case on the evidence and the law, and not on

preconceived notions of how the case should be

decided, commonly referred to as either “actual” or

“implied” biases. R.C.M. 912 (f)(1)(N).

9. Military Justice Key 884.1

Whether a court member is actually biased is most

often a judgment call for the military judge, based

upon answers the member gives to voir dire questions

and demeanor and credibility of the member. R.C.M.

912 (f)(1)(N).

App. 5

10. Military Justice Key 781

Conviction on charge of conduct unbecoming an

officer was supported by evidence of accused’s

possession of nude photographs of children and

adolescents, contained in his unlocked, government

desk; despite accused’s contention that he was not

placed on notice that this was a criminal offense,

rational finder of fact could conclude that possession of

such photographs brought disgrace upon an officer of

the armed forces. UCMJ, Art. 133, 10 U.S.C.A. § 933.

11. Military Justice Key 1421

Court members are presumed to follow the law

when properly instructed.

COX, S.J., delivered the opinion of the Court, in which

CRAWFORD, C.J., and GIERKE and SULLIVAN, J.J.,

joined. EFFRON, J., filed an opinion concurring in part

and in the result.

For Appellant: Robert Estrada (argued); Lieutenant

Colonel Jeanne M. Rueth and Captain Tishlyn Taylor (on

brief); Colonel Douglas H. Kohrt.

For Appellee: Captain Mitchel Neurock, USAFR

(argued); Colonel Anthony P. Dattilo and Lieutenant

Colonel Ronald Rodgers (on brief); Captain Steven D.

Dubriske.

App. 6

Senior Judge COX delivered the opinion of the

Court.

Appellant was tried by general court-martial

comprised of officer members on April 24-26, June 17-

21, and June 24, 1996. He was convicted, contrary to

his please, of violating Articles 125, oral sodomy (1

specification); 133, conduct unbecoming an officer (1

specification); and 134, indecent acts (2 specifications),

Uniform Code of Military Justice, 10 U.S.C. §§ 925, 933

and 934, respectively. Appellant was sentenced to be

confined for 6 years and dismissed from the Air Force.

The convening authority approved the sentence, and

the Court of Criminal Appeals affirmed, granting

partial relief in accordance with United States v. Gorski,

47 MJ 370 (1997). See 48 MJ 864 (1998).

We granted review of the following issues:

L WHETHER ALLOWING EVIDENCE OF

OTHER SEXUAL MISCONDUCT TO- SHOW

PROPENSITY UNDER FED.R.EVID. 413 OR 414

VIOLATES THE DUE PROCESS AND EQUAL

PROTECTION CLAUSES OF THE

CONSTITUTION.

Il. WHETHER THE MILITARY JUDGE ERRED IN

ADMITTING EVIDENCE OF UNCHARGED

SEXUAL MISCONDUCT UNDER FED. R.

EVID. 413 OR 414, EVEN THOUGH

APPEALLANT WAS CHARGED PRIOR TO

THE EFFECTIVE DATE OF THESE RULES.

App. 7

Il. WHETHER THE MILITARY JUDGE ERRED IN

DENYING THE DEFENSE MOTION TO

SUPPRESS EVIDENCE SEIZED FROM AP-

PELLANT’S HOUSE AND THE CONFESSION

MADE BY APPELLANT WHEN

CONFRONTED WITH THAT EVIDENCE.

IV. WHETHER THE MILITARY JUDGE ERRED IN ¢

DENYING THE CHALLENGE FOR CAUSE

AGAINST LT. COL. KIM MAURER.

V. WHETHER THE EVIDENCE IS LEGALLY

SUFFICIENT TO SUPPORT A FINDING OF

GUILTY OF CONDUCT UNBECOMING AN

OFFICER, CHARGE MI AND ITS

SPECIFICATION.

VL WHETHER APPELLANT RECEIVED

INEFFECTIVE ASSISTANCE OF COUNSEL.

Facts

All of the offenses for which appellant stands

convicted arose out of appellant's sexual abuse of his

natural children -one son and one daughter—which

started when his son was approximately 4 or 5 years

old and his daughter was 11 or 12 years old. The abuse

continued until each was about 16 or 17 years of age.

During the course of the trial, there was

questioning about prior, uncharged sexual abuse

offenses that occurred outside of the statute of

limitations. The testimony was offered under more

App. 3

than one theory. The Government originally sought to

offer it as either evidence of similar sexual offenses

under Fed.REvid. 413 or as evidence of child

molestation under Fed.R.Evid. 414." The military

judge ruled that this evidence was admissible under

Rule 414, as well as under Mil.R.Evid. 404(b), Manual

for Courts-Martial, United States (1995 ed.).

Discussion

I. Evidence of Prior Misconduct

[1] Issues I and II ask whether Rules 413 and 414

permit the admission of testimony of any of the victims

about sexual abuse that occurred outside the statute of

limitations. The military judge overruled the defense

objection to the evidence, finding it to be admissible.

He stated:

I find that the prior acts of sexual abuse

contained in the statements of [J] and [D] are

admissible under Military Rule of Evidence 414

[sic]. Further, I find that this evidence would

also be admissible under Military Rule of

Evidence 404(b) to prove scheme, pian, motive,

and preparation.

As he did below, appellant attacks here the

admission of the evidence under Rule 414 on several

* See United States v. Wright, 53 MJ 476, 478 (2000).

Rules 413 and 414 became applicable to the military at the

same time.

App. 9

grounds, including that Rule 414 is unconstitutional, at

least as it pertains to appellant The Court of Criminal

Appeals resolved the issue on the basis of Mil.R. Evid.

404(b). 48 MJ at 870—71. That court reasoned that there

was no need to address the Rule 414 question.

[2] We review the military judge’s ruling on the

admissibility of evidence under an “abuse of

discretion” standard. United States v. Acton, 38 MJ 330,

332 (CMA 1993). We agree with the approach taken by

the Court of Criminal Appeals. The testimony of the

victims regarding uncharged sexual abuse was

admissible as “other crimes, wrongs, or acts” under

Mil.R.Evid. 404(b).

In any event, we have recently resolved the

questions raised by appellant concerning the

applicability and scope of Mil.R.Evid. 413 and 414. See

United States v. Wright, 53 MJ 476 (2000). Applying that

rationale to the facts of this case, we would readily

conclude that this evidence was admissible to show

appellant's similar sexual molestation of his children.

II. | Admissibility of Seized Evidence

and Derivative Confession

[3] The sexually explicit material introduced against

appellant was seized as a result of a search warrant

issued by a Texas magistrate. Following the seizure,

appellant made some admissions (the confession),

which were used against him at trial. He now contends

that the magistrate’s warrant must fail because it was

not based upon probable cause. He further contends

App. 10

\

that his confession must also be suppressed as it

resulted from the illegal search warrant.

At trial and on appeal, the defense has consistently

attacked the warrant on the basis that the information

provided to the magistrate was stale and incomplete.

The information relied upon by the magistrate was

expert testimony and affidavits from appellant's son

and daughter that, over the course of several years,

appellant had shown them pornographic materials in

the form of videotapes and magazines in order to

arouse them. Moreover, both children alleged that they

had seen the materials since the time they had been

used to facilitate the abuse.

At trial, appellant argued that the Texas search

warrant was fatally flawed because the magistrate had

been denied a critical fact. There was no evidence that

the pornographic materials being sought by the war-

rant had been seen in the 5 years prior to the execution

of the victims’ affidavits regarding the materials.

Furthermore, there was no evidence that the materials

being sought had ever been seen in the Texas home of

appellant. Under these circumstances, appellant argues

the warrant was not properly based upon probable

cause and must be held invalid.

Pretrial, the military judge considered whether the

warrant was properly issued. After evaluating the

evidence, the judge decided as follows:

The defense motion, simply stated, is based

upon the position that the information

App. 11

provided by the children was stale. Staleness

is a factor appropriate for a magistrate in

evaluating probable cause. However, it is

only one factor to be evaluated. In light of all

of the information contained in the affidavit

provided to Judge Cate, and all of the

information provided to Judge Cate, including

the information in the treatise relied upon and

related to Judge Cate in the affidavit, the

sworn statements of [J] and [D], and even

without the statement provided by Lieutenant

Colonel Slicner, probable cause existed to

believe that some of the sexually explicit

materials allegedly used by the accused in

performing the various sexual activities

alleged, would be found in the residence in

Live Oak, Texas.

[4] Our standard of review of this issue is whether

the magistrate had substantial evidence in the record

to support his decision issuing the search warrant. See

United States v. Monroe, 52 MJ 326, 331 (2000).

First, based upon the information presented to the

magistrate, we agree with the military judge that the

magistrate “had a substantial basis for concluding that

a search [of appellant's home] would uncover evidence

of wrongdoing.” Perhaps the magistrate would not

have been persuaded to issue the warrant had he

known that there was no evidence the materials had

been seen in the last 5 years. However, we are not free

to speculate but must review the record presented to

the magistrate.

App. 12

We hold the military judge did not abuse her

discretion. First, under the totality of the circumstances’

presented to the magistrate, as set forth by the military

judge, there was probable cause to issue the warrant.

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983). We agree, therefore, with the Court of

Criminal Appeals that the military judge did not err by

denying the motion to suppress the fruits of the search

or the admissions made by appellant subsequent to the

search.

[5] However, even if the warrant was not based

upon probable cause, the evidence could be admitted

under the “good faith” exception to the warrant

requirement. United States v. Leon, 468 U.S. 897, 104

S.Ct. 3405,82 L.Ed.2d 677 (1984); United Stdtes v. Lopez,

35 MJ 35 (OMA 1992). The agents believed they were

executing a valid warrant and did not act outside of

the scope of the warrant they possessed. The items

seized were encompassed by the description in the

warrant. Thus, the agents reasonably believed these

items were seized under the authority of a lawfully

issued search warrant. Therefore, this evidence was

properly admit-

Ill. Denial of Challenge for Cause

[6] Lt. Col. Maurer was asked probing questions

during voir dire about his friendship with two

individuals who were victims of sexual abuse. Neither

friend was abused asa child. Lt. Col. Maurer stated

that he could disregard any knowledge of his friends’

App. 13

situations and that he could judge whether appellant

was guilty solely on the evidence presented. The

defense counsel also challenged Lt. Col. Maurer

because he stated that he believed someone with an

extensive collection of pornography probably had a

“fixation or something of that nature.” He also stated,

however, that he would not convict anyone of a sexual

offense solely because they possessed large quantities

of pornography. The military judge denied the defense

challenge for cause.

[7] We review the military judge’s denial of a

challenge for cause for an abuse of discretion. United

States v. Schlamer, 52 MJ 80, 93 (1999).

[8,9] RCM 912(f)(1)(N), Manual, supra, requires a

military judge to excuse a member “whenever it

appears that the member ... ... [sJhould not sit as a

member in the interest of having the court-martial free

from substantial doubt as to legality, fairness, and

impartiality.” The question of impartiality is largely

concerned with whether the member can judge the

case on the evidence and the law, and not on

preconceived notions of how the case should be

decided-commonly referred to as either “actual” or

“implied” biases. United States v. Napoleon, 46 MJ

279, 283 (1997). Whether a member is actually biased is

most often a judgment call for the military judge,

based upon the answers the member gives to voir dire

questions and the demeanor and credibility of the

member. Schlamer, supra, citing United States v. Na-

poleon, supra, United States v. Jefferson 44 MJ 312, 321

(1996).

\ ree ste Taw em ernst sewn

App. 14

We see nothing in the record before us that causes

us to conclude that the military judge abused her

discretion in denying the challenge of this member

based upon his actual bias. Furthermore, we are

satisfied that the judge did not err in refusing to excuse

the member because of any ‘implied bias." There is a

substantial difference between a court member who

has “friends” who weie victims or who may know a

victim of a crime and a member who may have had

“family” as a victim of a crime, Compare United States

v. Jefferson, supra, United States v. White, 36 MJ 284

(CMA 1993), and United States v. Daulton, 45 MJ 212

(1996).

IV. Legal Sufficiency of the Evidence

[10] The conduct unbecoming an officer charge was

based upon appellant's possession of sexually explicit

material depicting male and female genitalia and

magazines with pictures of naked children and

adolescents, in his unlocked, government desk.

Appellant argued at trial that he was not placed on

notice that this was a criminal offense. Here, on

appeal, appellant is arguing that these facts are legally

insufficient to support the charge of conduct

unbecoming an officer.

We disagree It is without question that, under the

circumstances of this case, a rational finder of fact

could conclude that possession of the nude

photographs of children and adolescents brings

disgrace upon an officer of the armed forces. United

Sat 9 1 gt ig. »

¥ E hae ogee me

4 Rp ee Fe

en

eT

States v. Hartwig, 39 MJ 125 (CMA 1994); United States

v. Maxwell, 45 MJ 406 (1996).

[11] The evidence in this case was presented to the

members with proper instructions. Members are

presumed to follow the law when properly instructed.

The evidence was legally sufficient to support the

charge of conduct unbecoming. See Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

V. Ineffective Assistance of Counsel

Appellant contends that his trial defense counsel

were deficient in the following particulars:

(1) They failed to push for a trial date before the

effective date of Rules 413 and 414, and did not

challenge their effective date at trial.

(2) They failed to call a potential alibi witness,

Chris Hannon, who would allegedly testify that

he was around appellant's son one summer and

that his son did not register a claim of sexual

abuse at this time.

(3) They did not offer pictures or measurements of

a glove box in a van to show why pornographic

magazines could not have been kept in this

compartment. This testimony would have

allegedly contradicted appellant's son’s testimo-

ny that these magazines were used from this

location on one occasion.

App. 16

(4) They prevented appellant from giving the

unsworn statement that appellant wanted to

give during sentencing.

After a careful review of the record, we conclude

that the Court of Criminal Appeals correctly evaluated

appellant's claims. 48 M.J at 872—73. Appellant has

offered nothing more to show how counsels’

performance was deficient. See Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Nor has he raised any unresolved questions of fact

concerning his claim, which would require further

proceedings. United States v. Ginn, 47 MJ 236 (1997).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

EFFRON, Judge (concurring in part and in the

result):

I agree with the majority opinion, except with

respect to Issue III. I concur in the result in Issue IL

and with the majority’s reliance on the good faith

exception. I disagree, however, with that portion of the

majority opinion that would suggest the search

warrant could be sustained upon a finding of probable

cause.

In the present case, the pertinent information was

provided by the victims. They had not seen the

material sought under the warrant during the previous

5 years, and they had never seen the material at the

residence that was the subject of the search. Under

App. 17

these circumstances, the 5—year time lapse stretches

the boundaries of reasonableness too far. a

The statement provided by the investigative

psychologist, profiling appellant as “sexually

indiscriminate” of “try-sexual, “1 does not “bridge the

gap” between the sighting and the search to save the

stale information. Although profiles may be used as a

factor to establish probable cause, see United States v.

Rugh, 968 F.2d 750 (8'» Cir.1992), the cases cited by the

Government involved gaps of less than 2 years

between the sighting of evidence and application for a

warrant. See, United States v. Lacy, 119 F.3d 742 (9th

Cir.1997); United States v. Harvey, 2 F.3d 1318 (3rd (3rd

Cir.1993). In my view, these cases represent the outer

boundaries of the use of profile evidence to “bridge the

gap” and they do not warrant a finding of probable

cause in the present case.

1 The psychologist’s affidavit, included with the

application for the search warrant, categorized appellant as

" ‘sexually indiscriminant' or 'try-sexual’ (meaning they will

try anothing plus everything sexual).”

App. 18

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Captain DAVID R. ey, SR., 466-96-2415

United States Air Force

; ACM 32551

17 August 1998

_M.J._

Sentence adjudged 24 June 1996 by GCM convened at

Randolph Air Force Base, Texas. Military Judge: Linda

S. Murmane

Approved sentence: Dismissal and confinement for 6

years.

Appellate Counsel for Appellant: Mr. Robert Estrada,

Colonel Douglas H. Kohrt. Lieutenant Colonel Kim L.

Sheffield. and Captain Tishlyn E. Taylor.

Appellate Counsel for the United States: Colonel

Brenda L. Hollis, Lieutenant Colonel Michael J. Breslin,

Major Allen G. Erickson, and Captain Steven D.

Dubriske.

App. 19

Before

SNYDER. YOUNG. and SENANDER

Appellate Military Judges

OPINION OF THE COURT

SNYDER. Senior Judge:

We hold in this case as follows: 1) a magistrate, or

authorizing official may, when presented an adequate

supporting basis, consider opinion evidence when

determining whether probable cause to search exists;

2) when evidence of other crimes or acts is admitted at

trial under both MIL. R. EVID. (Rule) 404(b) and 414, a

determination at the appellate level that the evidence

was properly admitted under Rule 404(b) moots any

issue regarding Rule 414; and, 3) questions by

appellate defense counsel as to ‘why’ trial defense

counsel did or did not do certain things before and

during the trial, without more, do not raise any

cognizable issue regarding ineffective assistance of

counsel.

L BACKGROUND

Tried by general court-martial, appellant was

convicted, contrary to his pleas. of consensual oral

sodomy, two instances of committing indecent acts,

and conduct unbecoming an officer and a gentleman.

Articles 125, 134. and 133, L!CMJ. 10 U.S.C. ~ 925, 934.

and 933. He was sentenced to a dismissal and

confinement for 6 years, which the convening

authority approved. Appellant submits 11 assignments

App. 20

of error, only one of which has merit, and only four of

which merit extended discussion. We grant partial

relief but otherwise affirm.

The charges appellant was convicted of arose from

repeated instances of him molesting his son and

daughter between 1976 and 1995. Due to the statute of

limitations, however, he was charged only with those

instances which occurred between September 20, 1990,

and May 1995. See Article 43(b)(1), UCMJ, 10 U.S.C. 8

843(b)(1). The first issue we consider is appellant's

assertion that the military judge erred in not granting

his motion to suppress the results of a search of his

residence.

I. FACTS

The military judge made extensive findings of fact

on this issue. They are as follows:

First, on or about 24 April 1995, [JLH] and (DRH]

were interviewed by the Air Force Office of Special

Investigations. They completed signed, sworn

statements in which they alleged a long history of

sexual abuse perpetuated upon them by the accused.

The statement of [DRH] related the accused

watched pornographic movies with him on Sunday

mornings; made video tapes of (DRH] involved in

sexual conduct with the accused: charged [the accused]

showed to (DRH] “dirty magazines” and showed him

homemade video tapes of sexual conduct occurring

between the accused and his wife.

App. 21

In the statement of [DRHJ, he indicated that often

this type of behavior occurred as a method used by the

accused in initiating sexual acts with [DRH].

Office of Special Investigations Detachment

Superintendent. Special Agent [B] telephonically

contacted Lieutenant Colonel Nancy A. Slicner, an

Investigative Psychologist assigned to AFOSI She

reviewed the case information and provided a memo

indicating an opinion that the subject described was

“sexually indiscriminate” or [a] “try-sexual” (meaning

they will try anything plus everything sexual]. She

further opined chat there was an ‘exceptional strong

likelihood” that such an individual would keep articles

of past sexual exploitations.

Three. Lieutenant Colonel Slicner told Special

Agent [B] that, based on the information she had been

provided, it was her opinion the accused was a “classic

pedophile.” Special Agent [B] then reviewed

information from a treatise on pedophilia titled The

Sexual Exploitation of Children by Seth Goldstein. That

information included certain common characteristics

of persons who, among other things, molest children.

Those criteria include collecting sexually explicit

materials and rarely, if ever, disposing of such

materials.

Fourth. Special Agent [B] took the statements of

[JLH] and (DRHJ, the statement of Dr Nancy Slicner,

and the information obtained from the Goldstein

treatise to Detective [S] of Live Oak [Texas] Police

App. 22

Department. He briefed Officer [S] on the investigation

and allowed her to review and inspect the information

he had regarding the case. Agent [B] prepared an

affidavit for search warrant and Officer (Sj,

accompanied by Agent [B], appeared before Judge R.

N. Cate [a magistrate of Bexar County, Texas] Officer

- [S] and Agent [B] were sworn by Judge Cate, related

the information substantially as it is contained in [the

affidavit]. It provided Judge Cate with the statements

of [JLHJ and [DRH], the statement from Lieutenant -

Colonel Slicner, and a summary of the information

from the Goldstein treatise. Judge Cate took

approximately one hour to review the information

provided to him prior to him issuing the warrant.

Five, none of the information provided to Judge

Cate specifically told him the materials had last been

seen by [JLH] and [DRH] in 1990 in a location other

than the accused’s residence in Live Oak, Texas.

Six, Judge Cate did have available for his review,

the 24 April ‘95 sworn statements of the Henley

children, which allege sexual abuse occurred in

California, Arkansas, Germany, Abilene. Texas. and

Warrensburg, Missouri. Additionally, the statements

clearly indicated the time frame of the alleged abuse.

Seven. [JLH] indicated in her 24 April 95 statement

that she presently resided in the premises which the

affidavit requested permission to search.

Eight. on 25 April ‘95, the Live Oak Police

Department did not have an open case involving the

App. 23

accused, nor was any case ever opened by the Live

Oak Police Department on [the accused] arising from

this investigation.

Nine, the warrant obtained from Judge Cate was

executed by Officer [S] with the assistance of the Live

Oak Police Department and the [AFOSI] and resulted

in the seizure of [over 1000 video tapes; video

recording equipment, including a camcorder camera;

and, numerous sexually explicit magazines, some of

which depicted nude children and homosexual acts,

were seized].

After making the above findings, the military judge

ruled that Judge Cate had a substantial basis for

finding probable cause to search and denied the

motion to suppress. We find no error in the ruling.

Il. DISCUSSION

A. Probable Cause to Search

A military judge’s ruling on the admission or

exclusion of evidence, including rulings on motions to

suppress, are reviewed for an abuse of discretion.

United Stares v. Ayala. 43 M.J. 296 (1995); United States v.

Agosto, 43 M.J. 745, 748 (A.F. Ct. Crim. App. 1995). As

search issues generally are mixed questions of fact and

law, we review a military judge’s findings of fact

under a clearly erroneous standard, and we review the

military judge’s conclusions of law under a de novo

standard of review. A military judge abuses his or her

discretion on a, motion to suppress only if the factual

findings are clearly erroneous or the law is applied

App. 24

erroneously. Ayala, 43 M.J. at 298; United States v.

Burns. 21 MJ. 140, 144 (C.M.A. 1985). Finding the

military judge’s findings in full accord with the

evidence of record, we adopt them as our own. Article

66(c), UCMJ. 10 U.S.C. § 866(c)

Both at trial and before this Court appellant's

primary assertion is that the information on which the

magistrate relied was too stale to constitute the

probable cause necessary to support issuance of the

warrant. In support of this position, appellant argues

the fact that that DRH’s and JLH’s statements omitted

the fact that they last saw the referenced sexually

explicit video tapes and other materials in 1990 in a

location other than appellant's Live Oak, Texas,

residence. Further, appellant avers Dr. Slicner’s

‘profile’ of appellant was insufficient to fill this gap.

Although appellant is relying, in part on information

which was not included in SAB’s and Detective S’

affidavit, trial defense counsel specifically stated that

he was not asserting misrepresentation or a reckless

disregard for the truth by SA B and Detective S.

Therefore, that issue is not before this Court.

Probable cause exists when there is sufficient

information to provide the authorizing official a

reasonable belief that the person, property, or evidence

sought is located in the place or on the person to be

searched. ML. R. EVID. 315(0(2): United States v. Nix. 35

M.J. 283 (C.M.A. 1992). Whether probable cause exists

for a magistrate to issue a search warrant is

determined by the totality of the circumstances

presented to the magistrate. Illinois v. Gates, 462 LLS.

App. 25

213, 233 (1983). In Gates, the Court emphasized the

fact that the law does not demand that a magistrate

make technical legal determinations when deciding

whether to issue a warrant. Instead, only a practical,

common sense assessment is required because the

central question is whether there is probable cause, not

whether there is proof beyond a reasonable doubt. See

Gates, 462 U.S. at 231 and cases cited therein. Searches

authorized by magistrates are preferable to searches

conducted under other bases. Consequently, a

magistrate’s determination that probable cause existed

is entitled to great deference. See United States v. Leon,

468 U.S. 897, 914 (1984); United States v. Hester, 47 M.].

461,466 (1998) (Gierke, J., concurring in part and in the

result); United States v. Lopez,35 M.J. 35, 49.50 (C.M.A.

1992) (Wiss, J., concurring in the result). In light of this

deference, this Court’s de nova review is confined to

whether the military judge was correct in ruling that

Judge Cate had a substantial basis for finding probable

cause existed to search appellant's residence. United

Stares v. Figueroa, 35 M.J. 54, 56 (C.M.A. 1992).

Timeliness of the information relied on is a vital

part of the probable cause decision matrix. Lopez, 35

M.J. at 38. As stated, ante, appellant's primary

complaints are: the information presented by DRH and

JLH was too stale for the magistrate to rely on. and the

magistrate improperly relied on Dr. Slicner’s opinion

and the information provided from Goldstein's treatise

to overcome the alleged staleness of the information

provided. However, although sufficient time may

have elapsed in a given situation whereby the most

reasonable inference is that the contraband or evidence

= Fa Pac nna FP ne Cats ia Ru bic se

Se BAP aE Us sat eR a ie Dt pon 8 he Rint a Set

' r

App. 26

is no longer at the place to be searched, the lapse of a

substantial period of time, standing alone between the

event or events relied on and the search is not

determinative, Id. The factors a magistrate, or other

authorizing official, must consider are: the location to

be searched; the type of crime being investigated; the

nature of the article or articles to be seized: how long

the criminal activity has been continuing; and, the

relationship, if any, of all these items to each other. Id

at 38-9 and cases cited therein; accord United States v.

Lacy, 119 F3d 742, 745 (9th Cir. 1997). cert. denied. __

US. . 118 S. Ct. 1571 (1998): United States v. Harvev. 2

F,3d 1318(3dCir. 1993); United States v. Peden, 891 F.2d

514. 518-19 (SthClr. 1989).

As regards Judge Caters consideration of Dr.

Slicner’s memorandum and the information from

Goldstein’s treatise, neither appellate government nor

civilian appellate defense counsel have invited our

attention to military precedent addressing the use of

expert. or other informed opinions by a magistrate.

This need not detain us, however. for as appellate

government counsel's brief reflects, the federal circuit

courts of appeals have considered the issue and found

no impropriety in a magistrate relying, in part. on

opinion evidence. See Lacy. 119 F.3d at 745: Harvey, 2

F..3d at 1320: Peden. 891 F.2d at 518. We discern no

reason to reject their reasoning as it may apply to

search issues before trials by courts-martial.

The general operative concept is that, as long as

there is an underlying factual basis for any opinion

tendered by the requesting investigator, the magistrate

App. 27

(or other authorizing official) may use it as part of

his/her probable cause determination. In the instant

case, this means that there must have been some

evidence in either the affidavit or other information

submitted to Judge Cate which demonstrated

appellant is a pedophile, and that pedophiles are

unlikely to dispose of certain possessions. Lacy, 119

F.3d at 746 n.6; Harvey, 2 F.3d at 1320.

Dr. Slicner reviewed DRH’s and JLH’s statements,

thereby providing her a factual basis for her

assessment and opinion. Similarly, SA B and Detective

S consulted Goldstein after obtaining and reading

DRH’s and JLH’s statements. Further, Judge Cate

thoroughly reviewed the sworn statements of DRH

and JLH. DRH’s statement contained the sordid

details of appellant's constant molestation of him

during the prior 14 years, and JLH gs statement

recounted appellant's sexual abuse of her. With this

factual basis, it was entirely permissible for Judge Cate

to entertain Dr. Slicner’s professional opinion and the

excerpts from Goldstein's treatise, to conclude that,

appellant probably is a pedophile, and that he

probably still possessed the video tapes, sexually

explicit magazines, and the sexual implements DRH

referenced in his statement. Lacy, 119 F.3d at 745 (with

evidence that defendant is a pedophile, customs agent

could rely on his training and experience to opine to

magistrate that defendant still possessed child

pornography 10 months later); Peden, 891 F.2d at 519

(with evidence that defendant is a pedophile. agent

could opine to magistrate that such persons are

unlikely to dispose of materials sought); accord United

App. 28

States v. Koelling, 992 F.2d 817. 8 19-20 (8th Cir. 1993).

This was not an instance of a magistrate relying on a

‘policeman’s hunch” to issue a search warrant, which

hornbook search and seizure law teaches is

insufficient. See United States v Sam. 46 C.M.R. 124, 129

(C.M.A. 1973). Instead, there was a credible factual

foundation underlying the opinions rendered.

In light of the underlying factual basis present in

the instant case, we eschew the parties’ use of the term

“profile” as it related to appellant and Judge Cate’s

determination Accordingly, we hold that, when a

magistrate or other official is presented sufficient

information, via affidavit or orally by the requesting

investigator, to factually connect the suspect with the

criminal activity or evidence in question. there is no

impropriety in the magistrate considering the

informed, relevant opinion of either the investigator or

other person or expert when determining whether

probable cause exists to issue a search warrant or

authorization. When an investigator renders an

opinion, the investigator must inform the magistrate of

the basis of the investigator's qualification to render

the opinion (training, experience, etc.). See Lacy, 119

F.3d at 745. Obviously, if an expert's opinion is

presented to a magistrate, it must be demonstrated that

the expert is familiar with the underlying information

which connects the suspect with the opinion.

Given these factors, Judge Cate clearly had a

substantial basis for determining that appellant

probably still possessed the items referenced in DJH's

App. 29

statement. Therefore, this assignment of error is

without merit.

B. Evidence of Other Wrongs or Acts

As stated in Part I, ante, the military judge

admitted, over trial defense counsel’s objection,

evidence of appellant's acts of molestation of DRH and

JLH which fell outside the statute of limitations. The

prosecution proffered the evidence under both Rules

404(b) and 414, and the military judge entered findings

and conducted the Rule 403 balancing test before

admitting the evidence under both rules. As a result,

civilian appellate defense counsel has submitted three

assignments of error which attack the propriety of

admitting the evidence under Rule 414, including an

averment that Rule 414 is unconstitutional. Civilian

appellate defense counsel’s brief is silent on the

propriety of admitting the evidence under Rule 404(b).

In light of the basis for the military judge's rulings at

trial, we need not address counsel's assertions

regarding Rule 414 to conclude the evidence was

properly admitted.

Frequently, appellate courts must apply a hierarchy

of sources of law to resolve various issues. The most

frequent hierarchy referenced is: the Constitution of

the United Stares: federal statutes, including the

UCMJ: executive orders, including the MANUAL FOR

COURTS MARTIAL and MILITARY RULES OF EVIDENCE; ET

AL. See Lopez, 35 M.J. at 39. The primary rule of

application is that the highest source of authority is

paramount unless a lower source accords greater

App.30 _

rights or protection for the individual or accused. 1d;

accord United States v. Davis, 47 M.J. 484 (1998). This

principle also applies when applying a particular

source; -in the instant case, the MILITARY RULES OF

EVIDENCE.

Without going into substantial detail, suffice it to

say that Rule 414 was promulgated specifically to

allow the admission of evidence of prior instances of

child molestation by an accused. The provisions of

Rule 414, and its limited legislative history, reflect that

Congress intended for Rule 414 to have a broader

reach than Rule 404(b). United States v. Hughes. __

MJ... ACM 32359 (A.F. Ct Crim. App. 1998): Id. at

___ (Snyder. S.J.. concurring in part and in the result).

One of the consequences of this fact is that the

relevancy threshold for Rule 414 is lower than that for

the other rules, and the balancing test of Rule 403 is

less restrictive for evidence admitted under Rule 414

than for evidence submitted under Rule 404(b). Id at

___; see also. e.g., United States v LeCompte. 131 F.3d 767.

769 (8thCir. 1997). Therefore, if the evidence in

question was properly admitted under Rule 404(b),

any question of admissibility under Rule 414 is

rendered moot. We now consider the military judge's

ruling that the evidence was admissible under Rule

404(b).

Our standard of review for this issue is abuse of

discretion. United States v. Acton, 38 M.J. 330 (C.M.A.

1993); United States v. Mukes, 18 M.J. 358 (C.M.A. 1984).

Rule 404(b) provides, in part. as follows:

App. 31

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character cf a person in

order to show action in conformity therewith.

It may, however, be admissible for other

purposes, such as proof of motive,

opportunity, intent, preparation, _ plan,

knowledge, identity, or absence of mistake or

accident...

There now is a well established three-part test for

determining admissibility, which is:

1. Does the evidence reasonably support a finding

by the court members that appellant committed

prior crimes, wrongs, or acts?

2. What “fact of consequence” is made more or

“less probable” by the existence of this

evidence?

3. Is the ‘probative value,’ substantially

outweighed by the danger of unfair prejudice”?

United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)

(citations omitted). The first part of this test presents a

very low threshhold. Simply, the military judge has

only to find that the members could reasonably find, by

a preponderance of the evidence, that appellant

committed the crimes in question. MIL. R. EVID

104(b); Acton. 38 M.J. at 333.

This prong was more than satisfied by the

App. 32

testimony of both DRH and JLH and that testimony of

SA B describing appellant's oral admissions. The

second part of the test addresses relevance. See Rules

401 and 402. Appellant was charged with the forcible

sodomy of DRH via the constructive force of parental

coercion which cancelled DRH’s ability to resist

appellant's actions. The prosecution informed the

military judge that the evidence was offered to prove

that appellant had conditioned DRH over the years to

submit to his sexual demands and that DRH had come

to believe it would be useless to resist appellant. See

United States v. Palmer. 33 M.J. 7 (C.M.A. 1991). Further,

after additional developments during the trial, the

prosecution also asserted, and the military judge

concurred, that the evidence was admissible to prove

appellant's “identity’ as the perpetrator of the indecent

acts charged in the specifications involving JLH. She

testified she was playing a computer game when she

felt a penis run across the back of her neck. Although

she did not turn around when it occurred, she believed

it was appellant because of his prior acts of abuse of

her, and she ignored the act so appellant would go

away. During cross-examination of JLH, trial defense

counsel suggested the prospect that it was DRH, not

the appellant, who touched the back of her neck with

his penis, as well as being the one who stood next to

her bed in her darkened bedroom and masturbated.

First, we observe that the evidence clearly was

offered for a purpose other than to show appellant's

propensity to commit the offenses charged. This Court

previously has held that similar crimes which fall

outside the statute of limitations may be admitted on

App. 33

the issue of consent where parental coercion is in issue.

United States v. Hansen. 36 M.J. 599. 603-4 (A.F.C.M.R.

1992). Moreover, given the defense’s theory of

mistaken identity, appellants crimes outside the

statute of limitations plainly were probative on that

issue as well as the issue of consent. and satisfied the

second part of the Reynolds test. Acton. 38 M.J. at 333.

The final question is whether the danger of unfair

prejudice substantially outweighed whatever

probative value the evidence had, which is the

balancing test of Rule 403.

Even evidence otherwise admissible must be

excluded if its potential for unfair prejudice

substantially outweighs the probative value of the

evidence. MIL. R. EVID. 403: United States v. Castillo, 29

M.J. 145. 151 (C.M.A. 1989). The military judge

performed this test as required and found the

probative value was not outweighed by the potential

for unfair prejudice. While the military judge did not

detail the factors of her balancing test, we do not

consider that fatal in light-of the-significant probative

value of the evidence.

Therefore, we conclude the military judge did not

abuse her considerable discretion in admitting the

evidence. Even if she committed error by doing so, it

was harmiess. See Article 59(a), UCMJ. The military

judge provided the members a limiting instruction on

the proper use of the evidence. It is evident from the

findings that the members followed the instructions

and confined the evidence to its proper role. Appellant

was found not guilty of forcible sodomy, two of the

App. 34

indecent acts with DRH and the charged act of rubbing

his penis across the back of JLH’s neck.

In light of the evidence being properly admitted

under Rule 404(b), we need not address the Rule 414

issues asserted by civilian appellate defense counsel.

IV. FACTUAL SUFFTCIENCY

Appellant asserts that the evidence is factually

insufficient to support the findings of guilty. We

disagree. To find a conviction factually sufficient, we

must determine that after weighing the evidence in the

record of trial and making allowances for not having

personally observed the witnesses, we are convinced of

_the accused’s guilt beyond a reasonable doubt. United

States v. Turner, 25 M.J. 324 (CM.A. 1987). neh

To support this averment, appellant refers to

DRH’s and JLH’s admitted prior inconsistent

statements and their inability to provide firm dates for

the instances of appellant's abuse of them.

Considering the lengthy time period involved, Like the

members, we do not find this factor remarkable.

Further, there is the ‘flatter of appellant's admissions,

especially the one made in the presence of his

supervisor, Lieutenant Colonel (Lt. Col.) L, when he

escorted appellant to his home to retrieve personal

items before departing for .a mental examination. Lt.

Col. L testified that, before departing his home,

appellant told his wife that she would be hearing some |

bad things about him and they were true. Contrary to

his approach on the admissions appellant made to SA

App. 35

B, trial defense counsel did not suggest that the

admission in Lt. Col. L’s presence related to the acts

outside the statute of limitations. Instead, he relied on

Mrs. H’s testimony that appellant said no more than

she would hear some bad things and for her to go to

her parents home in Fort Worth. We find SA B, Lt. Col.

L, DRH, and JLH, more credible. We too are

convinced, beyond reasonable doubt, of appellant's

guilt. Article 66(c), UCMJ. 10 U.S.C. § 866(c).

V. EX POSTFACTO

| Appellate government counsel properly concede

that the amendment of Article 57(a). UCMJ, and the

enactment of Article 58b, UCMJ, as applied to

appellant, violated the Ex Post Facto Clause of the

Constitution. United States v. Gorskj, 47 M.J. 370 (1997).

We will direct corrective action in our decreyal.

VL. INEFFECTIVE ASSISTANCE OF COUNSEL

Vil. : .

Civilian appellate defense counsel avers that

appellant “arguably did not receive effective assistance

of counsel.” and requests a post-trial fact-finding

hearing. See United States v. DuBav. 37 C.M.R. 411

(C.M.A. 1967). Whether counsel’s performance is

ineffective is measured by the Supreme Court's

standards promulgated in Strickland v.Washington, 466

U.S. 668 (1984), and its ever growing progeny. The first

and foremost teaching of Strickland. is that counsel’s

competency is presumed and appellant has the

substantial burden of rebutting that presumption.

When testing for whether an appellant has carried this

App. 36

burden, this Court resolves three basic questions,

which are:

(1) are appellant's allegations true and, if so, is

there a reasonable explanation for counsel's

actions in the defense of the case? (2) If true.

did the level of advocacy fall measurably

below the performance ordinarily expected

of fallible lawyers? and (3) If ineffective

assistance of counsel is found to exist, is

there a reasonable probability that absent the

errors, the factfinder would have hac a

reasonable doubt regarding guilt?

United States v. Polk. 32 M.J. 150, 153 (C.M.A. 1991);

accord United States v. Lonetree, 35 M.J. 396.412-13 ~

(C.M.A. 1992); United States v. Scott, 24 M.J.. 186, 188

(C.M.A. 1987).

In the instant case, neither appellant nor his civilian

appellate defense counsel assert any specific failing,

shortcoming, or misrepresentation by trial defense

counsel. Nonetheless, civilian appellate defense

counsel requests a post-trial hearing to answer a series

of questions which strike this Court as musings rather

than specific assertions of deficient performance. As

this and our superior Court have held previously, trial

defense counsel's tactics will not be second-guessed on

appeal. United States v. Morgan. 37 M.J.. 407 C.M.A.

1993): United States v. Stephenson, 33 M.J. 79 (C.M.A.

1991); United States v Rivas,. 3 M.J. 282, 289 (C.M.A.

1977).

App. 37

Based on appellant's offerings, we hold that

appellant has not even keyed the Polk test. Questions

such as: why wasn’t Lt Col. M_ challenged

peremptorily? Why didn’t trial defense counsel “push

the government to start appellant's trial before the

effective date of MIL. R. EVID. 414?”; and, why

weren't photographs taken of the “glove box in the

van?.’ strike this Court as no more than an indication

of how appellate defense counsel, with the not

insubstantial advantage of hindsight, may have tried

the case. Questions such as chose set forth do not raise

any factual issue for a post-trial hearing to address, see

United States v. Ginn. 47 M.J. 236 (1997), being as they

address the realm of tactical decisions.

Therefore, in the absence of a colorable claim of

inadequate preparation by trial defense counsel or

appellant's non-acquiescence in trial defense counsel's

tactics, the issue of ineffectiveness simply is not raised.

See United States v. Duffey, 37 M.J. 511. 516 (A.F.C.M.R.

1993).

VIL SENTENCE SEVERITY

Appellant asserts that his sentence _ is

inappropriately severe. We disagree. This Court's

statutory mandate directs that we approve only so

much of a sentence as round to be correct and

appropriate. Article 66(c), UCMJ. 10 U.S.C. § 866(c).

Performance or this function, however, does not entail

granting clemency. United States v. Healy, 26 M.J. 394,

395-96 (C.M.A. 1988). The primary manner of

discharging this Court's statutory duty on sentence is

—

App. 38

to give individualized consideration to appellant,

including the nature and seriousness of the offenses

and the character of appellant's service. United States

v. Snelling, 14 M.J. 267 (C.M.A. 1982). Applying these

factors, we do not find appellant's sentence to be

inappropriately severe. Further, the record convinces

us that the members sentenced appellant solely for the

offenses of which he was convicted. Article 66(c),

UCMJ, 10 U.S.C. § 866(c).

IX. OTHER ISSUES

The military judge did not abuse her discretion in

denying the challenge for cause of Lt. Col. M. The

record amply supports the military judge's

determination of Lt. Col. M’s credibility based on his

demeanor and responses. Further, we conclude that a

reasonable person hearing Lt. Col. M’s responses

would not have a perception of unfairness as a result

of his sitting as a court member. See United States v.

Youngblood, 47 M.J. 338 (1997) and cases cited therein.

We agree with appellate government counsel that

appellant waived any issue with respect to his

“confession. That defense counsel did not interpose any

objection to appellant's confession, his attack on the

legality of the search of appellant's residence

notwithstanding. MIL. R. EVID. 103(a)(I). Further, our

review of the record discloses no plain error. It is

especially noteworthy that SA B, not appellant,

terminated his only interview of appellant due to the

lateness of the hour. Therefore, appellant forfeited any

issue regarding his confession. MIL. R. EVID. 103(d);

App. 39

United States v. Olano, 507 U.S. 725 (1993); United States

v. Fisher, 21 M.1. 327, 328-9 (C.M.A. 1986); see also

United States v Tarleton, 47 M.J 170, 172 (1997).

Appellant also asserts for the first time that the

military judge erred when Instructing the members on

the conduct unbecoming an officer and a gentleman

offense. This offense was based on the inadvertent

discovery of numerous photographs and magazines at

appellant's work station in his desk. Most of the

photographs were of partially clad sunbathers. Some,

however, were photographs of male _ genitilia,

including one of appellant, and female genitilia. The

magazines depicted nude children, apparently at a

nudist colony. Trial defense counsel requested an

expansion of the instruction, which was revised, but

did not interpose any objection to the instruction

given. Our review discloses no error. In view of the

nature of the photographs and magazines, and the fact

they were inadvertently discovered in appellant's

government desk, the instructions were entirely

proper. See United States v. Shober, 26 M.J. 501

(A.F.C.M.R. 1986). Further, the instruction contained

every point trial defense counsel desired covered. This

assertion is without merit. RULES FOR COURTS MARTIAL

905(e). 920(f), MANUAL FOR COURTS MARTIAL, UNITED

STATES (1995 ed.); see also United States v Maxwell, 45

M..J. 406 (1996).

~ X. DECRETAL

The automatic collection of forfeitures nor included

in the sentence of the court-martial pursuant to Article

App. 40

58b, UCMJ, are declared to be without legal effect.

Any such forfeitures already collected from appellant

will be restored at the appropriate pay grade. The

record of trial is returned to The Judge Advocate

General for appropriate action. The case need not be

returned to this Court following administrative

correction unless further appellate review is required.

Accordingly, the findings and sentence are correct

in law and fact, and are hereby

AFFIRMED.

To: Judge YOUNG and Judge SENANDER concur.

OFFICIAL SEAL

UNITED STATES COURT OF CRIMINAL APPEALS

s/LAURA L. GREEN

Clerk of Court