United States v. Private First Class PATRICK A. BATTLES ( 2017 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    MULLIGAN, FEBBO, and WOLFE
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private First Class PATRICK A. BATTLES
    United States Army, Appellant
    ARMY 20140399
    Headquarters, United States North Atlantic Treaty Organization (referred)
    Headquarters, 21st Theater Sustainment Command (post-trial)
    Joshua S. Shuey, Military Judge
    Colonel Mark H. Sydenham, Staff Judge Advocate (pretrial)
    Colonel Jonathan A. Kent, Staff Judge Advocate (post-trial)
    For Appellant: Captain Joshua G. Grubaugh, JA (argued); Colonel Mary J. Bradley,
    JA; Major Christopher D. Coleman, JA; Captain Amanda R. McNeil Williams, JA
    (on brief); Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA (on
    supplemental brief and reply brief).
    For Appellee: Major Anne C. Hsieh, JA (argued); Major A.G. Courie III, JA; Major
    Anne C. Hsieh, JA (on brief); Lieutenant Colonel A.G. Courie III, JA; Major Michael
    Korte, JA; Major Anne C. Hsieh, JA (on supplemental brief).
    31 May 2017
    ----------------------------------
    MEMORANDUM OPINION
    ----------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    FEBBO, Judge:
    A panel with enlisted representation, sitting as a general court-martial,
    convicted appellant, contrary to his pleas, of sexual assault in violation of Article
    120, Uniform Code of Military Justice, 
    10 U.S.C. § 920
     (2012) [hereinafter UCMJ].
    Appellant also pleaded guilty to attempted use and attempted distribution of 3,4-
    methylenedioxymethamphetamine (MDMA), as lesser-included offenses of Article
    BATTLES—ARMY 20140399
    112a, UCMJ. 1 
    10 U.S.C. § 880
     (2012). MDMA is commonly known as ecstasy. The
    convening authority (CA) approved the adjudged sentence of a bad-conduct
    discharge, confinement for one year, and reduction to the grade of E-1.
    We review this case under Article 66, UCMJ. Appellant assigns eight errors. 2
    Four of the assigned errors merit discussion, and one merits relief. Below, we
    address whether: (1) the military judge erred when he failed to instruct on the mens
    rea 3 necessary to make appellant’s sexual conduct criminal; (2) the military judge
    abused his discretion by admitting portions of Private First Class (PFC) LL’s alleged
    journal; (3) the Staff Judge Advocate’s (SJA) Recommendation (SJAR) to the CA
    contained an affirmative misstatement of the law that effectively precluded the
    appellant’s opportunity to receive clemency; and (4) dilatory post-trial processing.
    We have considered the matters personally asserted by appellant pursuant to
    United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982). While we do discuss the
    post-trial Article 39(a), UCMJ, session stemming from the Special Victims’
    Counsel’s (SVC) behavior and opinion about PFC LL’s credibility, we ultimately
    conclude appellant’s Grostefon matters do not warrant relief.
    BACKGROUND
    Appellant and PFC LL met each other in June 2012. They were assigned to the
    same unit at Wiesbaden Army Airfield (WAAF, now known as Lucius D. Clay
    1
    Appellant asserts that the promulgating order incorrectly stated he was found guilty
    of two specifications of attempted use and distribution of MDMA. However, a
    corrected copy of the promulgating order in the record of trial states appellant was
    found guilty of only one specification of attempted use and distribution of MDMA.
    2
    In addition to the assigned errors discussed here, appellant asserts the following
    four assigned errors: (1) the evidence is factually and legally insufficient to sustain
    appellant’s conviction for sexual assault; (2) the military judge abused his discretion
    when he denied the defense motion to admit evidence under Military Rule of
    Evidence [hereinafter Mil. R. Evid.] 412; (3) the inaccurate “one drink means a
    female cannot consent to sex standard espoused in SHARP [Sexual Harassment /
    Assault Response and Prevention] training” and the military judge’s failure to
    instruct the members to disregard this training prevented appellant from getting a
    fair trial; and (4) the cumulative effect of the errors in this case denied appellant a
    fair trial.
    3
    “Mens rea” is the Latin term for “guilty mind” and refers to “[t]he state of mind
    that the prosecution . . . must prove that a defendant had when committing a crime.”
    Black’s Law Dictionary 1134 (10th ed. 2014).
    2
    BATTLES—ARMY 20140399
    Kaserne) near Wiesbaden, Germany, and became close friends. They socialized and
    drank alcohol together, used illegal drugs together, and had the same circle of
    friends. Private LL considered appellant to be her best friend but she was not
    interested in him sexually.
    On 31 August 2012, appellant, PFC LL, and another soldier went to the
    movies. Appellant and PFC LL left the movies and went out drinking and dancing at
    a dance club where PFC LL became intoxicated. In the early morning hours of 1
    September 2012, appellant and PFC LL went back to her barracks room.
    According to PFC LL, she did not remember much of the evening after
    leaving the bar/dance club. She did not remember taking off her clothes. She did,
    however, remember laying in her bed when appellant got on top of her and put his
    penis inside her vagina. She told appellant “no,” “stop,” “get off,” and she did not
    want to have sex. She also tried to push him off of her. However, appellant did not
    stop until PFC LL started crying. After getting off her, appellant appeared angry
    and left her barracks room.
    The next day appellant and PFC LL exchanged text messages:
    Appellant at 1000: Morning (:
    PFC LL at 1100: Battles. At what point during the night
    did I agree to have sex with you?
    Appellant at 1100: Wtf?? [what the fuck]
    PFC LL at 1121: Yeah that was my thoughts exactly.
    Appellant at 1121: My bad! I really do apologize!
    PFC LL at 1121: No.
    Appellant at 1121: No what?
    As PFC LL did not respond, the next evening appellant texted PFC LL to ask “Just
    wanted to know if we are still cool or what?” Private LL responded “I D[on’t]
    K[now].”
    Appellant and PFC LL remained friends until around November 2012 when
    she suspected he was telling people they had sex, and she became angry since she
    thought he was bragging about sex and was not being truthful about how that sex
    happened. She told other soldiers appellant sexually assaulted her. Later that
    month, appellant asked her “if someone else made you pregnant?” Private LL
    3
    BATTLES—ARMY 20140399
    responded “Whatever. You can go fuck yourself. Some friend you are. I am
    fucking done with you.” Around this time, she told two other soldiers she was
    sexually assaulted.
    In December 2012, PFC LL attended SHARP training. She informed a unit
    representative she had been sexually assaulted. The allegations were investigated by
    the U.S. Army Criminal Investigation Division (CID). Appellant gave a statement to
    a CID special agent (SA). Appellant told the SA he was drinking with PFC LL and
    she “was all over him” at the dance club. However, he did not remember anything
    later that evening and did not remember having sex with PFC LL. It was not until
    PFC LL texted him the next morning that he realized they had sex. He was surprised
    by the text and thought they must have been drunk when they had sex.
    At trial, the issue of PFC LL’s lack of consent was fully contested. Among
    other arguments, appellant asserted PFC LL consented to the sexual act, or in the
    alternative, fabricated the allegations out of revenge. The defense disputed the
    government’s theory of the case through cross-examination of the government
    witnesses and presentation of soldiers who testified PFC LL was not credible. The
    defense also presented alternate theories to undermine the sexual assault allegations.
    LAW AND ANALYSIS
    A. Whether the Military Judge Erred in the Instructions to the Panel
    Appellant was convicted of sexual assault by bodily harm. The elements for
    this violation of Article 120, UCMJ are: (1) that the accused committed a sexual act
    upon another person by (2) causing bodily harm to that other person. Manual for
    Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶
    45.a.(b)(1)(B). In appellant’s case the sexual act—penetrating PFC LL’s vulva with
    his penis—was also the bodily harm.
    Appellant asserts, for the first time on appeal, the military judge erred in
    failing to instruct the panel on the mens rea necessary to make appellant’s conduct
    criminal. The military judge instructed the panel that to convict appellant of sexual
    assault by bodily harm they had to be convinced beyond a reasonable doubt of the
    following:
    First, that on or about 1 September 2012, at or near
    Wiesbaden, Germany, the accused committed a sexual act
    upon [PFC LL], to wit: penetrating her vulva with his
    penis;
    4
    BATTLES—ARMY 20140399
    Second, that the accused did so by causing bodily harm to
    [PFC LL], that is, that he penetrated her vulva with his
    penis without her consent; and
    Third, that the accused did so without the consent of [PFC
    LL].
    The military judge’s instruction mirrored the Military Judges’ Benchbook and the
    statutory language of Article 120. See Dep’t of Army, Pam. 27-9, Legal Services:
    Military Judges’ Benchbook [hereinafter Benchbook] para. 3-45-14 (10 Sep. 2014).
    Based on the government’s charging decision, the military judge instructed the panel
    that proof of PFC LL’s lack of consent was required for both the bodily harm and
    overall sexual act elements. The military judge instructed the panel to consider “all
    the surrounding circumstances” to determine whether PFC LL gave consent. The
    military judge also instructed the panel on appellant’s potential defense of mistake
    of fact as to consent and told the panel to consider appellant’s state of mind and
    belief as to PFC LL’s consent. The panel was also instructed ignorance or mistake
    could not be based on the negligent failure to discover the true facts.
    Appellant asserts the current instructions on the elements for sexual assault by
    bodily harm are insufficient after Elonis v. United States, 4 
    135 S. Ct. 2001
     (2015),
    United States v. Gifford, 
    75 M.J. 140
     (C.A.A.F. 2016) (general order violation
    requires recklessness), and United States v. Rapert, 
    75 M.J. 164
     (C.A.A.F. 2016)
    (wrongfulness as a mens rea). Specifically, appellant argues Article 120(b)(1)(B)
    itself fails to specify a mens rea for the material element of lack of consent.
    Consequently, the instruction for this offense necessarily fails to include a mens rea
    on the material element of lack of consent, and is thus insufficient to establish that
    appellant’s conduct was unlawful. Therefore, appellant requests this court set aside
    the findings and sentence and grant appellant a new trial.
    1. Forfeiture
    At trial, appellant did not object to the instructions or request additional
    instructions concerning the specific mens rea required for sexual assault by causing
    bodily harm. In fact, the military judge specifically addressed the charged sexual
    assault by bodily harm as it related to the potential lesser-included offense of assault
    consummated by a battery:
    MJ: Okay. I just want to ensure, defense counsel, that with
    respect to assault consummated by a battery which
    normally would be considered a lesser included offense to
    this 120 bodily harm offense under a strict [United States
    4
    Appellant’s trial concluded before the Supreme Court decided Elonis.
    5
    BATTLES—ARMY 20140399
    v. Jones, 
    68 M.J. 465
     (C.A.A.F 2010)] kind of analysis,
    you don’t believe that the evidence raises that in this case,
    do you?
    DC: No, we don’t, Your Honor.
    MJ: And to the extent that it is, you waive it?
    DC: Correct, Your Honor.
    MJ: Okay, let’s talk about the evidentiary instructions.
    Rule for Courts-Martial [hereinafter R.C.M.] 920(f) states “[f]ailure to object
    to an instruction . . . before the members close to deliberate constitutes waiver of the
    objection in the absence of plain error.” In other words, failure to object forfeits the
    issue absent plain error. United States v. Ahern, 
    76 M.J. 194
     (C.A.A.F. 2017).
    Consistent with our superior court’s holding in United States v. Davis, when an
    “accused fails to preserve the instructional error by an adequate objection or request,
    we test for plain error.” 76 M.J.__, 
    2017 CAAF LEXIS 475
     (C.A.A.F. 2017) (citing
    United States v. Girouard, 
    70 M.J. 5
    , 11 (C.A.A.F. 2011)); see also Henderson v.
    United States, 
    133 S. Ct. 1121
    , 1126 (2013) (reaffirming the principle that any right
    may be forfeited by failing to timely assert it).
    2. Plain Error Analysis
    Under a plain error analysis, appellant has the burden of proving: “(1) an
    error was committed; (2) the error was plain, clear, or obvious; and (3) the error
    resulted in material prejudice to substantial rights.” United States v. Paige, 
    67 M.J. 442
    , 449 (C.A.A.F. 2009) (quoting United States v. Maynard, 
    66 M.J. 242
    , 244
    (C.A.A.F. 2008). “Once [appellant] meets his burden of establishing plain error, the
    burden shifts to the Government to convince us that this constitutional error was
    harmless beyond a reasonable doubt.” Paige, 67 M.J. at 449 (quoting United States
    v. Carter, 
    61 M.J. 30
    , 33 (C.A.A.F. 2005)). On the other hand, “[t]he failure to
    establish any one of the prongs is fatal to a plain error claim.” United States v.
    McClour, 
    76 M.J. 23
    , 25 (C.A.A.F. 2017) (quoting United States v. Bungert, 
    62 M.J. 346
    , 348 (C.A.A.F. 2006)).
    As any error in this case was neither plain nor prejudicial we do not directly
    determine whether the instructions constituted error.
    In considering whether an error is plain, we start by asking how well-settled
    the law is on this issue. Error is “plain” when it is “obvious” or “clear under current
    law.” United States v. Olano, 
    507 U.S. 725
    , 734 (1993). Then, we look to see how
    obvious the error was in the context of the trial. “When examining this prong, we
    6
    BATTLES—ARMY 20140399
    ask whether the error was so obvious ‘in the context of the entire trial’ that ‘the
    military judge should be faulted for taking no action’ even without an objection.”
    United States v. Gomez, 
    76 M.J. 76
    , 81 (C.A.A.F. 2017) (citing United States v.
    Burton, 
    67 M.J. 150
    , 153 (C.A.A.F. 2009) (quoting Maynard, 66 M.J. at 245)); see
    also United States v. Frady, 
    456 U.S. 152
    , 163 (1982) (noting that error is clear if
    “the trial judge and prosecutor [would be] derelict in countenancing it, even absent
    the defendant’s timely assistance in detecting it”). We do not find errors to be plain
    and obvious when the importance of the issue was not obvious at trial.
    The third and final prong of the plain error test is prejudice. A finding or
    sentence of a court-martial “may not be held incorrect on the ground of an error of
    law unless the error materially prejudices the substantial rights of the accused.”
    UCMJ art. 59(a).
    Appellant asserts the instruction as given was insufficient, error, and
    prejudicial for the following reasons. First, had appellant been able to argue his
    mistake of fact did not have to be reasonable, there is a reasonable probability he
    would have been acquitted. Second, his voluntary intoxication 5 may have been given
    more weight by the panel because he would not have been judged by the perspective
    of the reasonable sober person.
    Our review of the record demonstrates appellant cannot meet this burden.
    Private LL did not remain silent and vocalized and animated her lack of consent.
    Private LL testified she realized appellant’s penis was inside her vagina, and she
    specifically told him to stop and then pushed him. Appellant did not stop
    penetrating her until she started crying. Afterward, he left her room and looked
    angry. At the point PFC LL said “no, “stop,” “get off,” and that she did not want to
    have sex, appellant would have known the penetration of her vulva was without
    consent or acted in reckless disregard to any alleged consent. At trial, appellant
    argued “sexual intercourse does not turn off like a light switch” and “interrupting
    coitus is an odd thing” and does not happen right away. This court is not convinced
    by appellant’s argument a person cannot stop immediately when any alleged consent
    is affirmatively withdrawn.
    When considering appellant’s other defenses presented at trial, including that
    perhaps someone other than appellant sexually assaulted PFC LL, we are further
    convinced that even if there was instructional error, it was harmless beyond a
    reasonable doubt.
    5
    Generally, voluntary intoxication, whether caused by alcohol or drugs, is not a
    defense. R.C.M. 916(l)(2).
    7
    BATTLES—ARMY 20140399
    Here, appellant’s subjective state of mind (the mens rea) was never at issue.
    While the military judge gave a mistake of fact as to consent instruction, in our
    review of the record we do not find any evidence, let alone “some” evidence, that
    appellant subjectively believed that PFC LL had consented to the sexual conduct at
    issue. Simply put, appellant’s case was not focused on whether or not he acted
    negligently.
    The CID agent testified at trial that appellant told him he was drunk and did
    not remember having sexual intercourse with PFC LL. Appellant never told the
    agent he thought PFC LL consented to the sexual act or sexual contact. Appellant
    told the SA he was drunk and did not remember having sexual intercourse with PFC
    LL. Similarly, during opening statements, defense counsel argued appellant did not
    even know or remember having sexual intercourse with PFC LL until she texted him
    the next morning. He was surprised and was the reason he responded by text,
    “Wtf??” If appellant could not even remember having sexual intercourse with PFC
    LL, he could not assert that he was not guilty of the offense because he had an
    innocent state of mind because he believed she was consenting.
    Assuming arguendo it was error not to instruct on mens rea, we do not find
    any such error was obvious or clear under current law. Additionally, we find
    appellant has not met his burden of showing a material prejudice to a substantial
    right.
    B. Admission of Private First Class LL’s Journal
    Appellant asserts the military judge abused his discretion by admitting
    portions of PFC LL’s journal, and then again, by allowing the government to
    introduce a redacted version as opposed to admitting the entirety of the entry.
    Prior to trial, appellant filed a motion to exclude four handwritten pages from
    PFC LL’s journal on the basis of hearsay and failing the Military Rule of Evidence
    [hereinafter Mil. R. Evid.] 403 balancing test. At trial, appellant specifically argued
    the prejudice consideration under Mil. R. Evid. 403 was high because CID only
    obtained the four pages rather than the rest of the notebook, which precluded
    appellant from admitting the remainder under the Mil. R. Evid. 106’s rule of
    completeness. 6 During argument on the motion, the government offered the writings
    contained in the journal were admissible as evidence of PFC LL’s then-existing
    mental, emotional, or physical condition pursuant to Mil. R. Evid. 803(3). The
    6
    “Under the Military Rules of Evidence adopted in 1980, there are two distinct rules
    of completeness. Rule 106, the general rule of completeness . . . [and] Rule
    304(h)(2), which applies when a confession or admission is introduced against an
    accused.” United States v. Rodriguez, 
    56 M.J. 336
    , 339 (C.A.A.F. 2002).
    8
    BATTLES—ARMY 20140399
    government also contended the writings would be admissible non-hearsay as prior
    consistent statements pursuant to Mil. R. Evid. 801(d)(1)(B). The government went
    on to outline why the Mil. R. Evid. 403 balancing test tipped in favor of admission.
    In opposition, appellant argued the government could not meet the
    foundational elements to prove these writings predated PFC LL’s motive to
    fabricate. Appellant argued the court could not know if the writings were made on
    the dates listed on top of the pages, or whether PFC LL created these writings and
    falsely backdated them in order to make her sexual assault allegation appear more
    credible.
    The military judge found the journal entries and dates were written on the
    days contained in the writings, and those writings preceded the alleged motive to
    fabricate. The military judge then addressed the lost evidence rule under R.C.M.
    703(f)(2) by stating “we need to look at the lost evidence rule, it would seem, to
    determine, I think, whether or not you are unfairly prejudiced in some way by not
    having the rest of the story.” The military judge heard evidence on how the pages
    came into CID’s possession and why the rest of the notebook was not seized.
    After taking evidence and hearing argument on a separate government motion
    to exclude evidence about a prior inconsistent statement by omission made by PFC
    LL to a friend, the military judge ruled on the two motions. He denied the
    government’s motion to exclude PFC LL’s alleged prior inconsistent statement and
    told appellant under what conditions that evidence might become available and
    admissible to him. He then denied the defense motion to exclude the journal
    excerpts, and told the government the evidence could be admissible as a prior
    consistent statement to refute claims of recent fabrication or improper motive, if the
    government could lay an adequate foundation at the time. With respect to the rule of
    completeness and lost evidence rule, the military judge found the journal excerpts
    stood on their own, and it would be “pure speculation at this point that the journal
    itself would have anything of any evidentiary value.”
    During trial PFC LL testified, and the defense cross-examined her regarding
    motive to fabricate. Afterward, the government moved for the admission of the
    journal entries. The military judge found the opening statement of appellant’s
    defense counsel outlined the defense theory PFC LL fabricated her allegation, and
    during cross-examination of PFC LL they again implied she fabricated her allegation
    of sexual assault. The government offered a redacted portion of the exhibit, and the
    defense objected under the rule of completeness. The military judge heard argument
    and parsed out which statements could be redacted because they “implicate[] [Mil.
    R. Evid.] 412 and then also is not particularly relevant,” and which portions “puts
    the rest of it in some context.” This document was conditionally admitted. Prior to
    publishing this exhibit, appellant objected, and the military judge ruled:
    9
    BATTLES—ARMY 20140399
    I find that under the rule of completeness it is not
    something that ought, in fairness, be considered
    contemporaneously with the rest of the writing. And the
    only purpose for which the defense counsel seeks to have
    it included is to lay a foundation in which to enter other
    evidence which has very little probative value and
    significant risk of enflaming the panel into making
    assumptions that are improper in this case under [Mil. R.
    Evid.] 412. So, even though this isn’t itself [Mil. R.
    Evid.] 412 evidence, the fact is that to leave it in here
    would be to permit the introduction of evidence that is
    highly prejudicial and not particularly probative.
    The redactions related to PFC LL’s sexual activity with another person the
    day after the sexual assault.
    A military judge’s decision on whether to admit or exclude evidence is
    reviewed for an abuse of discretion. United States v. Olson, 
    74 M.J. 132
    , 134
    (C.A.A.F. 2015) (citation omitted). “A military judge abuses his discretion if his
    findings of fact are clearly erroneous or his conclusions of law are incorrect.” 
    Id.
    (internal quotation marks and citations omitted); see also United States v.
    Ellerbrock, 
    70 M.J. 314
    , 317 (C.A.A.F. 2011) (“Findings of fact are reviewed under
    a clearly erroneous standard and conclusions of law are reviewed de novo.”). Our
    superior court has previously stated the abuse of discretion standard is strict,
    “calling for more than a mere difference of opinion. The challenged action must be
    arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v.
    McElhaney, 
    54 M.J. 120
    , 130 (C.A.A.F. 2000) (internal quotation marks and
    citations omitted).
    The circumstances surrounding the destruction of the remainder of the
    notebook were fully litigated by the parties before the military judge ruled on
    admissibility of the redacted four pages of the journal. Private LL testified she kept
    a notebook journal and the timeframe when she prepared the entries that were
    introduced into evidence. It was not a journal she wrote in all the time, but it did
    include several entries and notes. The defense cross-examined PFC LL, who
    explained she wrote the entry the day after the assault. Her testimony was supported
    by the contemporaneous text message exchange between appellant and PFC LL the
    day after the assault. Based on PFC LL’s testimony, the date of the journal entry,
    and testimony from the CID special agent, the military judge concluded the journal
    entry was written before PFC LL allegedly had a motive to fabricate when appellant
    later spread rumors about them having sex. This court finds PFC LL’s inclusion of
    both her friendship with appellant and sensitive and personal information about
    sexual activity with another person further supports the pages were prepared around
    2 September 2012.
    10
    BATTLES—ARMY 20140399
    Turning to the rule of completeness contained in Mil. R. Evid. 106, “when a
    writing . . . or part thereof is introduced . . . an adverse party may require that party
    . . . to introduce any other part or any other writing . . . which ought in fairness to be
    considered contemporaneously with it.” R.C.M. 703(f)(2) states:
    [A] party is not entitled to the production of evidence
    which is destroyed, lost, or otherwise not subject to
    compulsory process. However, if such evidence is of such
    central importance to an issue that it is essential to a fair
    trial, and if there is no adequate substitute for such
    evidence, the military judge shall grant a continuance or
    other relief in order to attempt to produce the evidence or
    shall abate the proceedings.
    The military judge did not abuse his discretion in overruling appellant’s
    objection to the journal entries being introduced by the government. We also find
    the military judge did not abuse his discretion by redacting portions of the journal.
    The redactions were reasonable since they included evidence that had limited
    relevance to the charges against appellant, and would ultimately allow the defense to
    enter other information that would improperly inflame the panel into making
    improper assumptions. Nor did the military judge abuse his discretion in allowing
    the redacted portions of the journal to be used as prior consistent statements to rebut
    an express or implied charge of recent fabrication by PFC LL.
    C. Post-Trial Article 39(a) Hearing on Special Victim Counsel Communications
    After conclusion of appellant’s trial, an embarrassing and unnecessary side-
    show unfolded.
    The central figure in this drama is PFC LL’s SVC—Captain (CPT) John
    Danenberger. While we will explain in more depth, CPT Danenberger essentially
    mislead various individuals about his whereabouts, missed a court hearing, and then
    tried to deflect blame by breaching his duties to his client by implying his client had
    been untruthful in her testimony.
    While CPT Danenberger’s lack of candor was the fuel for this conflagration
    and his breach of professional standards was the spark that set it ablaze, the
    resulting fire likely should have been quickly extinguished. Instead, a multi-month
    drama unfolded.
    We address this issue not only because it is concerning, but also as appellant
    specifically asked us to address it. Appellant, in his Grostefon matters, asserts the
    military judge erred in not granting a new trial after conducting a post-trial Article
    39(a), UCMJ, hearing concerning CPT Danenberger’s opinion about PFC LL’s
    11
    BATTLES—ARMY 20140399
    credibility and whether she committed perjury at trial. Appellant asserts the military
    judge erred in conducting an in camera review of documents and questioned the SVC
    ex parte at the hearing. Furthermore, appellant asserts he was prejudiced by the
    military judge’s order sealing certain documents that he could have presented to the
    convening authority as part of his R.C.M. 1105/1106 matters.
    However, as we will explain, after numerous post-trial Article 39(a), UCMJ,
    sessions, administrative investigations, and betrayals by CPT Danenberger of his
    client’s confidences, it would turn out that all the sound and fury in the end signified
    no prejudice to appellant.
    1. Where in the World is Captain Danenberger?
    Captain Danenberger was appointed as PFC LL’s SVC and met with his client
    a number of times prior to trial. On the day of a scheduled Mil. R. Evid. 412
    hearing, CPT Danenberger failed to make an appearance to represent his client.
    Captain Danenberger told the trial counsel and his client he would be unable
    to attend the Mil. R. Evid. 412 hearing because he had to attend mandatory SVC
    training in Washington, DC. This statement was false.
    Captain Danenberger told the SVC program manager he could not attend the
    SVC training because he would be at the Mil. R. Evid. 412 hearing. This statement
    too was false.
    In fact, CPT Danenberger was in Majorca, Spain, on leave with his family.
    Captain Danenberger was ordered to return to Germany, but did not. He then
    appeared at the Mil. R. Evid. 412 hearing via telephone. After the hearing
    concluded, the trial continued while simultaneously—and not surprisingly—
    administrative and ethical investigations ensued.
    2. Post-trial Allegations of Perjury
    After appellant was convicted, an attorney from the Office of the Staff Judge
    Advocate contacted CPT Danenberger to determine if he continued to represent PFC
    LL during the post-trial process. Captain Danenberger’s answer “implied that he
    was aware of perjury on the part of his client.” 7
    This belief, it would turn out, was also false. While CPT Danenberger
    harbored beliefs about his client’s credibility, he had no evidence of perjury or lies.
    7
    Quoted remarks are from the military judge’s findings of fact.
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    BATTLES—ARMY 20140399
    His assessment of his client’s believability was an assessment of the same evidence
    that would come out at trial. The military judge suspected CPT Danenberger’s
    disloyal disclosure about his client’s credibility was an attempt to deflect attention
    away from his own misconduct. We agree with that assessment.
    Captain Danenberger’s disclosure triggered a series of events. The
    government notified the defense PFC LL’s attorney thought PFC LL lacked candor
    during the court-martial. Appellant’s defense counsel interviewed CPT
    Danenberger, filed a motion for a post-trial Article 39(a), UCMJ, session, requested
    that the military judge determine if PFC LL committed perjury at trial, and moved
    for a new trial. Defense counsel also filed a motion to compel the government to
    provide post-trial discovery of any communications between CPT Danenberger and
    PFC LL.
    The trial court conducted a post-trial Article 39(a), UCMJ, hearing to attempt
    to unravel the mess. Private LL received another SVC. Captain Danenberger
    testified and invoked the attorney-client privilege on behalf of PFC LL multiple
    times when questioned by the government, defense, and the court. Captain
    Danenberger also testified that he was personally under investigation and invoked
    his Fifth Amendment right not to answer questions that might incriminate him.
    Faced with the assertion of privilege, the military judge had to determine
    whether there was an exception to the privilege. The military judge determined
    there was “an unwritten exception” to the attorney-client privilege when there was
    “direct evidence of perjury.”
    We find the military judge’s analysis to be unconvincing. Certainly there is
    an exception to the privilege for “future crimes” (e.g. a client will commit perjury).
    See Mil. R. Evid. 502. Under the military judge’s reasoning, no person who has
    committed perjury could ever seek the confidential advice of an attorney. It strikes
    us as elementary that a person who has committed perjury can seek the advice of an
    attorney with the same confidentiality as one who may have committed other crimes.
    We find no support for the proposition that the attorney-client privilege may be
    breached whenever there is direct evidence of past perjury.
    As the military judge found an unwritten exception to the attorney-client
    privilege, what happened next was an inquiry to determine whether the unwritten
    exception applied. As CPT Danenberger had not attended the trial, he did not have
    any actual knowledge of perjury. This fact might have ended the matter.
    Instead, CPT Danenberger’s supervising staff judge advocate directed him to
    review the trial transcripts to determine which testimony by his client he thought
    was untruthful. The CA issued CPT Danenberger a grant of immunity and order to
    testify. The military judge then questioned him about this review under oath in
    13
    BATTLES—ARMY 20140399
    camera. That is, an SJA directed CPT Danenberger to actively seek out information
    contrary to his client’s interests and inform the military judge whether he now
    believed his client committed perjury.
    In March 2015, the military judge issued a fifty-two-page opinion on the
    defense motion for post-trial relief based on the newly discovered evidence of the
    SVC’s opinion about PFC LL’s credibility. The opinion includes extensive research
    on a multitude of topics to include the scope of the SVC program, the attorney-client
    relationship between an SVC and a victim, and the purported unwritten exception to
    the attorney-client privilege.
    The military judge ultimately determined appellant was not entitled to relief
    as CPT Danenberger did not in fact know of perjury or believe PFC LL committed
    perjury. The military judge concluded the SVC did not possess any “new or
    additional evidence which would substantially affect the legal sufficiency of any
    findings of guilty or of the sentence.” He found the SVC “struggled to believe PFC
    LL’s account of the assault in some manner.” Captain Danenberger was also
    concerned about the different accounts PFC LL had made to others and his
    understanding (or apparent misunderstanding) of the evidence in the case. However,
    the military judge correctly concluded CPT Danenberger’s opinion on the weight of
    the evidence was inadmissible ‘human lie detector’ testimony. See generally United
    States v. Martin, 
    75 M.J. 321
     (C.A.A.F. 2016). The military judge found CPT
    Danenberger’s opinion had minimal probative value and “may be based on his own
    presumptions, assumptions, and biases.” The military judge concluded CPT
    Danenberger’s “opinion, which is the nature of a hunch or conjecture and
    undoubtedly is influenced by his feelings about PFC LL and her lifestyle, is not
    evidence; certainly it is not admissible evidence which could affect the findings or
    sentence in this case.”
    It should go without saying SVCs are attorneys, possessing the same attorney-
    client privilege as in other similar and well-known attorney-client relationships. A
    court-martial has the same ability to pry into the confidential communications
    between PFC LL and CPT Danenberger as it would had PFC LL hired a civilian
    attorney to advise her and represent her interests. That is to say, based on these
    facts, none. While the SVC program was new at the time, SVCs operate under the
    same professional and privilege rules as other attorneys. See generally Army Reg.
    27-26, Legal Services: Rules of Professional Conduct for Lawyers (1 May 1992). If
    it would have been unthinkable to subpoena and order a civilian attorney to review
    evidence to see if the client lied, question them under oath about whether and why
    the attorney believed his or her client, turnover the client notes, and allow the
    attorney of the person who assaulted the client to then review the material—it should
    have been equally unthinkable here. The same concerns and limitations would apply
    to a military attorney from the U.S. Army Trial Defense Service (TDS) that
    represent a witness at a court-martial.
    14
    BATTLES—ARMY 20140399
    Ultimately, whatever the propriety of the events, the result of the post-trial
    affair (at least for appellant and PFC LL) was a whole lot of nothing. Captain
    Danenberger was unaware of any actual perjury, and his personal opinion about the
    truth of his client’s claims would have been impermissible human lie detector
    testimony. In the end, the military judge correctly concluded the SVC did not
    possess any independent evidence or testify about facts that supported any claim of
    perjury. Indeed, CPT Danenberger’s personal opinion about his client was neither
    relevant nor admissible.
    We conclude the military judge did not err in his post-trial rulings concerning
    CPT Danenberger or in his decision to seal portions of the record. While it may
    have been error to create the exhibits, it was not error to seal them once created.
    See R.C.M. 1103A. And, in any event, appellant’s defense counsel was permitted to
    review the exhibits post-trial, and we can find absolutely no prejudice to appellant.
    In explaining the several month delay in post-trial processing caused by post-
    trial hearing, resolving motions, and writing an extremely thorough opinion on the
    issues, the military judge described the post-trial proceedings as an “albatross.” See
    Samuel Taylor Coleridge, The Rime of the Ancient Mariner, in Lyrical Ballads
    (1798). In our view, the post-trial proceedings are better described as a complete
    and unnecessary debacle all stemming from the initial deception and
    unprofessionalism of CPT John Danenberger.
    D. Error in Staff Judge Advocate’s Addendum
    Appellant asserts the addendum contained a misstatement of the law that
    effectively precluded appellant’s opportunity to request clemency from the CA. We
    agree.
    In his 22 April 2015 SJAR, the SJA recommended the convening authority
    approve the findings and sentence as adjudged. On 4 May 2015, appellant submitted
    post-trial matters pursuant to R.C.M. 1105 and 1106 and requested the CA grant
    clemency in the form of either approving a post-trial administrative discharge or
    disapproving the findings for the sexual assault charge.
    In the addendum to the SJAR, the SJA informed the CA of unreasonable post-
    trial delay and the SJA recommended the CA grant thirty (30) days of confinement
    credit for the delay. However, citing UCMJ art. 60(c)(4)(a), the SJA informed the
    CA he was prohibited from disapproving, in whole or in part, a sentence to
    confinement arising from a conviction for an Article 120, UCMJ offense. (emphasis
    added). The CA subsequently approved the adjudged findings of guilty and
    sentence. As the SJA only provided this legal advice in the addendum, appellant did
    not waive or forfeit this error by failing to raise the matter to the convening
    authority. See R.C.M. 1106(f)(6).
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    BATTLES—ARMY 20140399
    We review unforfeited errors in post-trial processing de novo. United States
    v. Kho, 
    54 M.J. 63
    , 65 (C.A.A.F. 2000). The SJA improperly advised the CA that
    clemency in appellant’s case was not permissible. R.C.M. 1107(d)(1)(B) (2016 ed.)
    now prohibits the convening authority in most instances from taking any action to
    “disapprove, commute, or suspend in whole or in part that portion of the sentence”
    which includes confinement for more than six months or a punitive discharge.
    However, this limitation to the CA’s discretion as to action on the sentence does not
    apply where “at least one offense resulting in a finding of guilty occurred prior to 24
    June 2014,” in which case the prior version of R.C.M. 1107 applies. See R.C.M.
    1107, note (2016 ed.)
    Given that appellant’s offenses occurred prior to 24 June 2014, the CA did
    have discretion to disapprove some or all of the adjudged sentence to confinement.
    See R.C.M. 1107(d)(1) (2012 ed.). The government argues the SJA’s misstatement
    of the law was only made when addressing the alleged error in post-trial processing
    and there is no showing of actual prejudice.
    However, the insertion of the misstatement of the law (even as it related to
    only one legal error) made the addendum confusing and inaccurate. Appellant has
    made a colorable showing of prejudice. We will not speculate as to what action the
    convening authority would have taken in this case when he was not provided the full
    range of options legally available to him in assessing appellant’s clemency request.
    We therefore grant relief of a new addendum and initial action as directed in our
    decretal paragraph.
    E. Dilatory Post-Trial Delay
    The CA took action 385 days after the conclusion of appellant’s court-martial.
    The record in this case consists of nine volumes and the trial transcript is 1171
    pages. Of that delay, approximately twenty-one days were attributable to the
    defense, 240 days attributable to the government, and 124 days attributable the trial
    court’s post-trial proceedings.
    The government finished the initial 1045-page trial transcript in eighty-two
    days. Afterward, the defense counsel requested the military judge delay
    authenticating the record of trial in order to file a motion for a post-trial session.
    As described above, the military judge addressed several post-trial motions,
    conducted a post-trial 39(a) hearing, and drafted a fifty-two-page opinion on the
    defense motion for post-trial relief. The record of trial includes the military judge’s
    reasonable explanation for the delays in the post-trial proceedings.
    We do not find a due process violation or unreasonable post-trial delay by the
    government. In the addendum, the SJA informed the CA there was unreasonable
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    BATTLES—ARMY 20140399
    post-trial delay, and the SJA recommended the CA grant thirty days of confinement
    clemency for the delay. Since the court is returning the record of trial for a new
    addendum and action, the CA may consider the appropriateness of the sentence in
    light of any unjustified dilatory post-trial processing. United States v. Tardif, 
    57 M.J. 219
    , 224 (C.A.A.F. 2002).
    CONCLUSION
    The convening authority’s initial action, dated 2 June 2015, is set aside. The
    record of trial is returned to The Judge Advocate General for a new addendum and
    initial action by the same or a different convening authority in accordance with
    Article 60(c)-(e), UCMJ.
    Senior Judge MULLIGAN concurs.
    Judge WOLFE, concurring:
    In the first part of this opinion we address an issue of mens rea in sexual
    assault cases where the allegation asserts that the bodily harm in a sexual assault
    specification is the penetrative act itself.
    Ultimately, we do not address appellant’s allegation of error as assigned,
    because even if error, as there was no objection to the instructions, and any error did
    not amount to plain error. I agree with that analysis. I write separately to express
    my opinion the allegation of error in this case is a non-trivial issue.
    Military justice practice has appeared to have taken an expansive view of
    Elonis. This view may reflect that many UCMJ offenses—such as orders violations
    and offenses under Articles 133 and 134, UCMJ—are less defined than typical
    civilian offenses. It may also reflect that most of the offenses have not been
    substantially updated since the passage of the UCMJ (or often since the Articles of
    War). The “general rethinking of traditional mens rea analysis” that occupied the
    federal courts in the 1970s and 1980s did not result in a recodification of criminal
    offenses in the UCMJ. United States v. Bailey, 
    444 U.S. 394
    , 403, 
    100 S. Ct. 624
    ,
    631 (1980).
    Our superior court recently cited Elonis in its rejection of our analysis that
    Article 134, UCMJ, (disorders and neglects) implicitly established a mens rea of
    negligence. United States v. Tucker, 76 M.J. __, 2017 CAAF LEXIS ___ (C.A.A.F.
    2017); see also Haverty, 76 M.J. at 201.
    There is an argument that the reach of Elonis should be limited because of the
    Supreme Court’s decision in Parker v. Levy, 
    417 U.S. 733
     (1974), where the Court
    acknowledged the military criminal code includes both crimes and what would
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    BATTLES—ARMY 20140399
    normally be considered administrative actions. The military is “often employer,
    landlord, provisioner, and lawgiver rolled into one.” Parker v. Levy, 
    417 U.S. 733
    ,
    751, 
    94 S. Ct. 2547
    , 2559 (1974). The UCMJ, the Court stated, “cannot be equated
    to a civilian criminal code.” 
    Id.
     As such, so goes the argument, the application of
    Elonis is limited within the military context.
    That argument is strongest when applied to military specific offenses, but
    perhaps weakest when applied to common law-type crimes such as battery and
    sexual assault. Accordingly, and given that our superior court has unblinkingly
    applied Elonis to even military specific offenses, it may be wise to assume that
    Elonis is fully applicable to the offense in question here: sexual assault by bodily
    harm.
    On appeal the government argues that, similar to assault and battery under
    Article 128, UCMJ, Congress intended sexual assault by bodily harm to be a general
    intent crime. If we ever reach the issue, I would note that the UCMJ treats issues of
    “bodily harm” much differently than federal civilian statutes. Compare Article 128,
    UCMJ, with 
    18 U.S.C. § 113
    (b). In applying Elonis to a general intent offense such
    as assault consummated by battery, it is far easier to separate innocent from
    wrongful conduct when the statute uses terms such as “serious bodily injury” or
    “substantial bodily injury.” See 
    18 U.S.C. § 113
    (b). When the issue of bodily harm
    is instead “any offensive touching no matter how slight” an errant hug is included in
    the criminal battery statute. See UCMJ art. 128.
    Of course, not every unwanted touching is a battery. The UCMJ separates out
    unwanted but non-criminal conduct through the application of defenses. When
    raised, the government must disprove beyond a reasonable doubt the defenses such
    as accident and mistake of fact. However, and critically, these defenses do not apply
    if the accused was negligent. This conundrum raises the question of whether Elonis
    reaches into the mens rea of defenses and, if so, to what effect.
    FOR THE
    FOR THE COURT:
    COURT:
    MALCOLM
    MALCOLM H.   H. SQUIRES, JR.
    SQUIRES JR.
    Clerk of Court
    Clerk of Court
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