United States v. Dowd ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39073
________________________
UNITED STATES
Appellee
v.
Joshua J. DOWD
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 29 November 2017
________________________
Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 1 year and
8 months, forfeiture of all pay and allowances, reduction to E-1, and a
reprimand. Sentence adjudged 22 January 2016 by GCM convened at
Ramstein Air Base, Germany.
For Appellant: Major Allen J. Abrams, USAF; Major Mark C. Bruegger,
USAF.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne,
USAF; Major Meredith L. Steer, USAF; Major Matthew L. Tusing,
USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge MINK joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Dowd, No. ACM 39073
JOHNSON, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of attempting to commit
a lewd act on a child under the age of 16 years in violation of Article 80, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 880. 1 The court-martial sen-
tenced Appellant to a dishonorable discharge, confinement for one year and
eight months, reduction to the grade of E-1, forfeiture of all pay and allow-
ances, and a reprimand. The convening authority approved the sentence as
adjudged.
Appellant raises four issues for our consideration on appeal: (1) whether
the findings of guilt are incorrect as a matter of law because Appellant was
entrapped by the Government; (2) whether the Government violated Appel-
lant’s due process rights by failing to disclose information favorable to the De-
fense; (3) whether the military judge erred by limiting the testimony of Appel-
lant’s expert witness; 2 and (4) whether Appellant’s sentence was unduly se-
vere. We find no error that materially prejudiced a substantial right of Appel-
lant; accordingly, we affirm the findings and sentence.
I. BACKGROUND
Appellant was stationed at Ramstein Air Base (AB), Germany, when he
responded to a personal advertisement in the “Casual Encounters” section of
the Craigslist website on 24 January 2015. The author of the ad purported to
be a “younger dependent girl” living on Ramstein AB seeking an “AF man” for
“some full time fun.” Appellant’s response stated: “Would love stone [sic] full
time fun. How old are you? I’m 22 but have plenty of experience and know what
I’m doing. Let me know some things about you.” So began Appellant’s corre-
spondence with “Tina,” a fictional 14-year-old girl who was created by Special
Agent (SA) TK of the Air Force Office of Special Investigations (AFOSI) from
his office in Quantico, Virginia, in coordination with the AFOSI detachment at
Ramstein AB.
“Tina’s” reply informed Appellant that she was 14 years old. Their corre-
spondence by email and text message continued and eventually turned sexual,
including comments by Appellant regarding his preferred sexual activities and
experience, to include oral sex. In the course of their correspondence, Appellant
1 The court-martial found Appellant not guilty of one specification of attempting to
commit a sexual assault on a child under the age of 16 years in violation of Article 80,
UCMJ.
2 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
2
United States v. Dowd, No. ACM 39073
also sent “Tina” two photos of his exposed penis and a video of himself mastur-
bating. Appellant made arrangements to meet “Tina” in an apartment on base
where she was supposedly housesitting alone. When he arrived at the apart-
ment, Appellant was met and apprehended by AFOSI agents.
Appellant was charged with one specification of attempted sexual assault
of a child by penetrating her mouth with his penis, one specification of at-
tempted sexual abuse of a child by communicating indecent language to “Tina,”
and one specification of sexual abuse of a child by exposing his genitalia to
“Tina,” all in violation of Article 80, UCMJ.
II. DISCUSSION
A. Entrapment
1. Additional Background
The Defense filed a pretrial motion to dismiss the charge and specifications,
asserting Appellant had been entrapped by SA TK. The Defense pointed to the
following factors in its motion: users of the Craigslist “Casual Encounters” page
were required to affirm they were at least 18 years old; the absence of preex-
isting evidence that Appellant was sexually involved with or attracted to chil-
dren under the age of 16 years; the photos of “Tina” SA TK sent Appellant,
which the Defense asserted portrayed a female who “arguably appear[ed] to be
in her 20s”; SA TK’s alleged persistence in continuing the dialog; and SA TK’s
alleged goading of Appellant into bolder responses by having “Tina” comment
that Appellant was “boring.” In response, citing several military appellate
court decisions for comparison, the Government contended SA TK’s conduct
was not so coercive, outrageous, or shocking to the judicial conscience that Ap-
pellant was entitled to prevail as a matter of law.
In a written ruling, the military judge denied the motion to dismiss. He
distinguished between the “subjective” test for entrapment, which is normally
resolved by the finder of fact at trial, and the “objective” test for entrapment
rooted in the Due Process Clause of the Fifth Amendment, 3 which may be de-
cided by a military judge as a matter of law. 4 He found SA TK’s behavior was
not so outrageous or shocking as to establish entrapment as a matter of law on
due process grounds. The military judge acknowledged that, after Appellant’s
initial contact, “Tina” reinitiated some further electronic conversations, but he
3 U.S. CONST. amend. V.
4In argument on the motion, trial defense counsel conceded the military judge should
apply the “objective” test to determine whether entrapment existed as a matter of law
and, accordingly, the military judge should decide without submitting the issue to the
court members.
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United States v. Dowd, No. ACM 39073
found no extraordinary pressure or inducement was exerted on Appellant, who
was free to discontinue the correspondence at any time.
Nevertheless, at trial the military judge instructed the court members
“[t]he evidence has raised the issue of entrapment in relation to all of the of-
fenses alleged,” and he provided them further instructions on that defense,
without objection. The court members acquitted Appellant of the attempted
sexual assault, but convicted him of both specifications of attempted sexual
abuse of a child.
2. Law
With respect to the affirmative defense of entrapment, Rule for Courts-
Martial (R.C.M.) 916(g) states: “It is a defense that the criminal design or sug-
gestion to commit the offense originated in the Government and the accused
had no predisposition to commit the offense.”
In the usual case, applying what is known as the “subjective” test for en-
trapment, the defense has the initial burden of showing some evidence that an
agent of the Government originated the suggestion to commit the crime. United
States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). Once raised, “the burden then
shifts to the Government to prove beyond a reasonable doubt that the criminal
design did not originate with the Government or that the accused had a pre-
disposition to commit the offense . . . .” Id. (citations omitted). When a person
accepts a criminal offer without an extraordinary inducement to do so, he
demonstrates a predisposition to commit the crime in question. Id.“Inducement” means more than merely providing the appellant the means
or opportunity to commit a crime. United States v. Howell, 36 M.J. 354, 358
(C.M.A. 1993). Instead, the Government’s conduct must:
create[ ] a substantial risk that an undisposed person or other-
wise law-abiding citizen would commit the offense . . . . Induce-
ment may take different forms, including pressure, assurances
that a person is not doing anything wrong, persuasion, fraudu-
lent representations, threats, coercive tactics, harassment,
promises of reward, or pleas based on need, sympathy, or friend-
ship.
Id. at 359–60 (citations, emphasis, and internal quotation marks omitted). The
Government may use undercover agents and informants to ferret out crime
and afford opportunities or facilities for criminals to act upon without impli-
cating the defense of entrapment. Jacobson v. United States, 503 U.S. 540, 548
(1992); see also Howell, 36 M.J. at 358; Whittle, 34 M.J. at 208. “Artifice and
stratagem may be employed to catch those engaged in criminal enterprises.”
Sorrells v. United States, 287 U.S. 435, 441 (1932); see also United States v.
Russell, 411 U.S. 423, 435–36 (1973). For example, law enforcement officers
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United States v. Dowd, No. ACM 39073
may pretend to be someone other than a Government agent. See Howell, 36
M.J. at 358.
In addition to the “subjective” test for entrapment described above, the mil-
itary courts have recognized an “objective” test whereby a court may find the
Government’s conduct so outrageous or shocking to the judicial conscience that
it violates an accused’s right to due process under the Fifth Amendment, and
thereby constitutes entrapment as a matter of law. United States v. Berkhimer,
72 M.J. 676, 680 (A.F. Ct. Crim. App. 2013); see United States v. Vanzandt, 14
M.J. 332, 343 n.11 (C.M.A. 1982). To establish entrapment as a matter of due
process, the appellant must show either excessive Government involvement or
significant Government coercion in causing the crime to occur under the total-
ity of the circumstances. Berkhimer, 72 M.J. at 680. In Berkhimer we further
explained:
This is an “extraordinary defense reserved for only the most
egregious circumstances” and is not to be invoked every time the
government acts in a deceptive manner or participates in a crime
it is investigating. . . . To meet the threshold standard of being
fundamentally unfair or shocking, the accused must generally
show the government acted with coercion, violence or brutality
to the person.
Id. (citations omitted). “The issue of whether an accused’s due process rights
were violated is a question of law that this court reviews de novo. . . . When
doing so, we give substantial deference to the military judge’s findings of fact
and will not overturn them unless they are clearly erroneous.” Id. (citations
omitted).
3. Analysis
On appeal, both parties quote Vanzandt for the proposition that “[s]ince the
trier of fact found against him on the entrapment issue, [A]ppellant can only
prevail by showing that these findings are incorrect as a matter of law.” 14
M.J. at 345. In Vanzandt, our superior court found no “outrageous police be-
havior” that would require reversal “on due process grounds,” implying an ap-
plication of the objective, constitutional test for entrapment. Id. Before us, Ap-
pellant explicitly urges “Appellant was entrapped as a matter of law.” There-
fore, we begin our analysis by applying the objective test. Under that standard,
Appellant must demonstrate “fundamentally unfair or shocking” police behav-
ior in order to prevail. Berkhimer, 72 M.J. at 680.
We are not persuaded. At the outset of their correspondence, “Tina” in-
formed Appellant that she was only 14 years old. Despite this, Appellant will-
ingly sent “Tina” messages describing his enjoyment of oral sex and rough sex,
offering to “teach” her about sex, referring to his penis size, and indicating that
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United States v. Dowd, No. ACM 39073
he wanted to look at pictures of her while masturbating. In addition, he sent
“Tina” two unrequested photos of his penis and a video of himself masturbat-
ing. The record indicates he did so not because he was coerced or fearful, but
in order to gratify his sexual desires. The fact that “Tina’s” Craigslist adver-
tisement and many of her messages were arguably titillating, that “Tina” re-
initiated the text conversation at certain points, and that “she” called Appel-
lant “boring” did not coerce Appellant’s behavior, and it fails to outrage or
shock the judicial conscience to the point of establishing a due process viola-
tion.
Yet we do not end our inquiry there. Unlike the military judge in ruling on
the Defense’s pretrial motion to dismiss, and unlike our superior court, we are
not limited to questions of law. See United States v. Parker, 36 M.J. 269, 271
(C.M.A. 1993) (noting military service courts “are something like the proverbial
800-pound gorilla when it comes to their ability to protect an accused”). We
recognize our “awesome, plenary, de novo power” of review, United States v.
Cole, 31 M.J. 270, 272 (C.M.A. 1990), and our charge under Article 66(c),
UCMJ, to “affirm only such findings of guilty . . . as [we] find[ ] correct in law
and fact and determine[ ], on the basis of the entire record, should be ap-
proved.” 10 U.S.C. § 866(c). Article 66(c) requires we conduct “a de novo review
of the legal and factual sufficiency of the case.” United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). Where, as the military judge found here, the
evidence before the court-martial raises the issue of entrapment, at trial the
burden shifts to the Government to prove the absence of entrapment beyond a
reasonable doubt under the subjective test described above. If the Government
cannot do so, the accused should be acquitted. In other words, the absence of
entrapment essentially becomes part of the case the Government must prove
beyond a reasonable doubt in order to secure a conviction. Accordingly, we now
also review Appellant’s entrapment claim under the subjective standard.
The initial question under this standard is whether there is some evidence
the suggestion to commit the crime originated with an agent of the Govern-
ment. Whittle, 34 M.J. at 208. “There must be more than a scintilla” of such
evidence. Howell, 36 M.J. at 359. By way of comparison, our superior court has
found that repeated requests by a Government agent to purchase illegal drugs
through an accused is not sufficient evidence of Government origination to
warrant an entrapment instruction. Id. But we recognize the military judge
found a sufficient basis to instruct the court members on the affirmative de-
fense in this case. For purposes of our analysis we assume, without deciding,
the burden shifted to the Government.
Nevertheless, we are satisfied beyond a reasonable doubt Appellant was
not entrapped. An accused who commits an offense without an extraordinary
inducement from a Government agent to do so demonstrates a predisposition
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to commit the offense, and is not the victim of entrapment. Whittle, 34 M.J. at
208. “Extraordinary inducement” requires more than simply being presented
with the opportunity to commit the crime. Id. In this case, SA TK through
“Tina” merely created the opportunity to commit the offense. Appellant chose
to respond to the advertisement and to continue the correspondence after being
told “Tina” was only 14. Appellant initiated the sexual conversation, and chose
to send “Tina” photos and a video of his penis. “Tina” did not initiate sexually
explicit conversations, nor did she request any sexually explicit images, nor did
she coerce or threaten Appellant into any course of action. We are not per-
suaded that a 14-year-old girl calling a 22-year-old man “boring” in a text mes-
sage is an extraordinary inducement to commit a lewd act with a child under
the circumstances of this case.
The Government’s conduct did not create a substantial risk that an undis-
posed person or otherwise law-abiding citizen would commit these crimes. Ap-
pellant, by his actions, demonstrated his predisposition to commit the under-
lying offenses. Therefore, he was not entrapped.
B. Discovery
1. Additional Background
Appellant’s trial concluded on 22 January 2016. In April 2016, SA TK tes-
tified in another court-martial at Ramstein AB featuring “Tina,” United States
v. Smith. 5 During that trial, SA TK was cross-examined regarding the opera-
tions plan that was submitted to AFOSI leadership to authorize the “Tina” op-
erations, known generally as “Operation Artemis.” SA TK testified that he par-
ticipated in creating the operations plan, which included as an attachment an
“OSI Form 4,” a checklist for conducting undercover operations. SA TK further
testified the Artemis plan required approval by a GS-15 civilian director as
well as the general officer AFOSI commander. Then the following colloquy oc-
curred:
Q. [Civilian Defense Counsel] [SA TK], please take a look at this
document. This is the Artemis that we discussed with attach-
ment one, the OSI Form 4, correct?
A. [SA TK] Yes, sir.
Q. This is the operational plan that was used and authorized, as
you say, with regard to this Tina operation, correct?
A. Yes, sir.
5 Appellant’s civilian trial defense counsel, Mr. AC, was also Smith’s civilian trial de-
fense counsel.
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United States v. Dowd, No. ACM 39073
Q. There is no other are [sic] Artemis, no other operation plan
approved by the general, correct?
A. No, sir.
Q. Because the general didn’t approve the Tina operation, you
would agree it’s an unreliable investigation, correct?
A. Yes, sir.
Q. An unauthorized investigation? The general didn’t approve
the Tina investigation, correct?
A. Yes, sir.
Q. The very reliability of the case against Senior Airman Smith,
in your mind, would be called into substantial question if this
operation were not authorized, correct?
A. Yes, sir.
As SA TK’s testimony continued, he acknowledged the checklist attached
to the operations plan, the OSI Form 4, indicated that SA TK as the undercover
agent would portray “a military husband with kids,” a form of the operation
known as “Plan A,” but did not reference SA TK portraying an underage girl,
known as “Plan B.” However, SA TK clarified that the operations plan itself,
as distinguished from the attachment, authorized both Plan A and Plan B ac-
tivities, and that the general had in fact “signed off on the ops plan.” The OSI
Form 4 was an administrative checklist merely to be used as a guide; the op-
erations plan itself was the “standard” of the operation. The copy of the opera-
tions plan attached to the Smith record of trial as an appellate exhibit indicates
the AFOSI commander signed and approved the Artemis plan in late October
2014, over two months before Appellant responded to “Tina’s” Craigslist ad in
the instant case. The Artemis plan authorized a six-month operation.
The cross-examination of SA TK in Smith later focused on a week-long
training course on conducting undercover operations such as the “Tina” opera-
tion that SA TK had attended. SA TK indicated that prior to Smith and to
other trials based on “Tina” operations, trial counsel had asked him whether
he had a “training guide or syllabus” from that course, and SA TK had informed
them he did not. However, he testified he did have “slides” from the course,
and had told trial counsel so. SA TK testified it was his understanding that
“slides” as distinguished from a “training guide or syllabus” had never been
requested. These slides address the subject of entrapment, among other topics.
SA TK further testified trial defense counsel in Smith became aware of the
existence of these slides when they asked SA TK about slides in a pretrial in-
terview. During the interview, SA TK also told the Smith trial defense counsel
he believed he had previously provided the slides to trial counsel.
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United States v. Dowd, No. ACM 39073
Turning to the substance of the training, SA TK acknowledged the slides
used during the first three days of the course do not specifically include exam-
ples of Plan B-type operations. However, he testified the “hands-on” portion of
the course during the final two days did include specific training on Plan B
scenarios. SA TK denied that the “Tina” operation he conducted in Smith de-
viated from his training or from the Artemis operations plan.
Captain (Capt) AS, the then-Deputy Chief of Military Justice at Ramstein
AB, also testified in Smith. Capt AS had served as a trial counsel in three prior
trials featuring “Tina” in which SA TK had testified, including Appellant’s; he
was not a trial counsel in Smith. Capt AS testified that prior to the first of
these trials in October 2015, the trial defense counsel (who did not include Ap-
pellant’s trial defense counsel) had requested any training materials related to
entrapment that SA TK may have from the course he attended. Capt AS testi-
fied he relayed the request to SA TK in Quantico, Virginia, specifically includ-
ing “slides” as materials that were requested. According to Capt AS, SA TK’s
response was that the instructor had no training materials from the course,
and SA TK did not provide any slides or other training material. Capt AS tes-
tified he did not receive requests for such training materials in the other two
trials in which he served as trial counsel—although not referenced by name,
this would have included Appellant’s trial.
Appellant’s civilian defense counsel, Mr. AC, has provided a sworn decla-
ration that at the time he was preparing for Appellant’s trial, his understand-
ing from communicating with other defense counsel involved in prior courts-
martial involving SA TK was that there were no entrapment training materi-
als. As a result, the Defense did not specifically request SA TK’s training ma-
terials in its written discovery requests prior to Appellant’s trial. Mr. AC rep-
resented Smith as well as Appellant. Although Mr. AC specifically asked SA
TK about training materials in pretrial interviews before Smith’s court-mar-
tial, he “cannot specifically recall” doing so in Appellant’s case. Mr. AC avers
that disclosure of these materials in appellant’s case would have enabled him
to demonstrate that SA TK deviated from his training, and that his training
deviated from other investigative agencies’ operating procedures in such cases.
He believes it may also have impacted the matters the Defense expert, Dr. MD,
was permitted to testify to (addressed below), but he does not specify how. Fi-
nally, he contends that prior to Appellant’s trial he was unaware SA TK’s
“Tina” operation was “unauthorized,” which SA TK agreed made it an “unreli-
able” investigation.
Appellant’s military defense counsel, Major (Maj) BP, also provided a sworn
declaration. Maj BP echoes Mr. AC’s assertion that Appellant’s defense team
learned from other defense counsel that the Government had previously denied
the existence of entrapment training materials, and therefore the Defense did
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United States v. Dowd, No. ACM 39073
not issue a specific discovery request for such materials prior to Appellant’s
trial. Like Mr. AC, Maj BP does not presently recall orally requesting entrap-
ment training materials prior to Appellant’s trial. However, he believes the
Defense did orally request such materials based on representations he previ-
ously made in the clemency submission to the convening authority after Ap-
pellant’s trial. His clemency memorandum, dated 24 April 2016, includes the
following assertion:
During interviews for this court-martial and prior associated
cases, Defense Counsels have consistently requested SA [TK]
and prosecutors produce training materials which were utilized
in the training of SA [TK] and other special agents . . . . Despite
existence of a training slide deck of 86 slides being in the position
[sic] of AFOSI, SA [TK] failed to identify such existence to the
Defense prior to the conclusion of US v SrA Dowd.
Like Mr. AC, Maj BP did not recall receiving any information regarding SA
TK’s “Tina” operation being “unauthorized.” He contends the training materi-
als and information regarding the “unauthorized” nature of the operation
“would have been useful for cross-examination purposes” and “may have made
a material difference . . . regarding the matters to which Dr. [MD] was permit-
ted to testify.”
2. Law
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). The United States Supreme Court
has extended Brady, clarifying “that the duty to disclose such evidence is ap-
plicable even though there has been no request by the accused . . . and that the
duty encompasses impeachment evidence as well as exculpatory evidence.”
Strickler v. Greene, 527 U.S. 263, 280 (1999); see United States v. Claxton, 76
M.J. 356, 359 (C.A.A.F. 2017).
“A military accused also has the right to obtain favorable evidence under
Article 46, UCMJ . . . as implemented by R.C.M. 701–03.” United States v.
Coleman, 72 M.J. 184, 186–87 (C.A.A.F. 2013). Article 46 and these implement-
ing rules provide a military accused statutory discovery rights that are greater
than those afforded by the Constitution. See id. at 187; United States v. Rob-
erts, 59 M.J. 323, 327 (C.A.A.F. 2004). In particular, R.C.M. 701(a)(2)(A) re-
quires the Government, upon defense request, to permit the inspection of, inter
alia, any documents “within the possession, custody, or control of military au-
thorities, and which are material to the preparation of the defense . . . .” Infor-
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United States v. Dowd, No. ACM 39073
mation which is relevant to a witness’s credibility may be “material to the prep-
aration of the defense” for purposes of R.C.M. 701(a)(2)(A). Roberts, 59 M.J.
323, 326 (C.A.A.F. 2004).
Consequently, there are two categories of disclosure error: (1) cases in
which the defense made no discovery request or merely a general request for
discovery; and, (2) cases in which the defense specifically requested the infor-
mation. Coleman, 72 M.J. at 187 (citing Roberts, 59 M.J. at 326–27). The harm-
less error standard of review—“whether there is a reasonable probability that,
had the evidence been disclosed, the result of the proceeding would have been
different”—applies to the first category. Id. (quoting Smith v. Cain, 565 U.S.
73, 75 (2012)) (internal quotation marks omitted). The heightened constitu-
tional harmless beyond a reasonable doubt standard applies to the second cat-
egory. Id. “Failing to disclose requested material favorable to the defense is not
harmless beyond a reasonable doubt if the undisclosed evidence might have
affected the outcome of the trial.” Id.In reviewing discovery matters, we conduct the following two-step analysis:
“first, we determine whether the information or evidence at issue was subject
to disclosure or discovery; second, if there was nondisclosure of such infor-
mation, we test the effect of that nondisclosure on [Appellant’s] trial.” Id. (quot-
ing Roberts, 59 M.J. at 325) (internal quotation marks omitted).
3. Analysis
Appellant contends the Government violated his right to discovery in two
respects. First, Appellant asserts the Government failed to disclose SA TK’s
training slides in response to a specific request for such materials. Second, Ap-
pellant avers the Government failed to disclose the “unauthorized” nature of
the “Tina” operation, and was required to do so because it was Brady material
and also responsive to the Defense’s discovery request for information regard-
ing witness bias. Accordingly, Appellant concludes this court should set aside
the findings and sentence. We disagree.
a. Subject to Discovery
We begin by considering whether either of these pieces of information were
required to be disclosed to the Defense in this case. See Coleman, 72 M.J. at
187. We conclude they were not.
With respect to the training slides, Appellant does not contend they are
Brady material but rather argues they were specifically requested and mate-
rial to the preparation of the defense, and therefore subject to R.C.M.
701(a)(2)(A). We are not persuaded. Both Mr. AC and Maj BP indicate they did
not submit a specific written discovery request for such material. Neither can
recall orally requesting such material prior to Appellant’s trial. Capt AS’s tes-
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United States v. Dowd, No. ACM 39073
timony at Smith’s trial confirms there was no such discovery request in Appel-
lant’s case. Apparently, when Mr. AC did later inquire about such material in
a pretrial interview before Smith’s court-martial, SA TK informed him of the
existence of the slides. We perceive no apparent reason why SA TK would have
disclosed this information in Smith but withheld it in Appellant’s case if he
had been asked the same questions. Similarly, in Mr. AC’s extensive cross-
examination of SA TK during Smith’s trial there is no reference to SA TK hav-
ing previously misled the trial defense counsel in pretrial interviews before
Appellant’s trial.
It is true that Maj BP’s clemency submission to the convening authority in
Appellant’s case conveys the impression the Defense requested the training
materials in “this court-martial and prior associated cases.” However, counsel’s
zealous advocacy for relief on behalf of his client, hard on the heels of the dis-
closure of the slides in Smith’s court-martial, is a very slender reed on which
to find such a request in the absence of any other evidence of it.
It is also true the testimony of SA TK and Capt AS in Smith suggest an
actual discovery request for training material may not have been properly han-
dled in a different court-martial held in October 2014. However, that was not
this case. That Appellant’s trial defense counsel may have received misleading
information through other defense counsel does not change the absence of a
discovery request in this case.
With respect to the “unauthorized” nature of the operation, Appellant con-
tends this was incorporated by his request for Brady material and information
regarding witness bias. Again, we are not persuaded. Appellant points to the
OSI Form 4 checklist attached to the operations plan, which described a “Plan
A” operation but not a “Plan B” operation such as that employed in Appellant’s
case. However, the Artemis operations plan itself, as SA TK explained in his
testimony in Smith, clearly authorized both types of operations.
Appellant also points to the portion of SA TK’s testimony in Smith where
he appeared to agree the AFOSI commanding general “didn’t approve the Tina
operation” and therefore “it’s an unreliable investigation.” This testimony is
puzzling and difficult to square with SA TK’s subsequent testimony in the
same case that the AFOSI commander did authorize the Artemis operations
plan, and with the copy of the plan attached to the record, which indicated the
general signed and approved it. It is possible SA TK was confused by the ques-
tion; or believed the civilian defense counsel was presenting a hypothetical sit-
uation; or was drawing a distinction between the umbrella Artemis plan for
“Tina”-type operations, which the commander did sign, and the specific “Tina”
operation involving Appellant, which the commander did not separately au-
thorize. It is possible the manner in which the questions were spoken influ-
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United States v. Dowd, No. ACM 39073
enced the response in some way not apparent in the transcript. It is also pos-
sible SA TK simply misspoke, and subsequently clarified his testimony. In any
event, considering the record as a whole, we are not persuaded that SA TK
believed the operation was unauthorized, that the operation was in fact unau-
thorized, or that the prosecution had a duty report it as such, either under
Brady or in response to a general discovery request under R.C.M. 701.
b. Effect of Nondisclosure
Assuming arguendo that the training slides and the “unauthorized” nature
of the “Tina” operation in Appellant’s case should have been disclosed, we next
consider the effect of the nondisclosure on Appellant’s trial. Because we have
found there was no specific discovery request for either piece of information, it
follows that we would apply the harmless error test: whether there is a reason-
able probability disclosure would have led to a different result. However, even
if we applied the heightened standard of harmlessness beyond a reasonable
doubt, we would still find no relief warranted. See id.
Disclosure of the training slides would not have impacted the trial in any
significant way. The critical evidence in this case was not SA TK’s testimony
per se, but the electronic record of Appellant’s communications with “Tina.” SA
TK’s direct testimony in Appellant’s trial was largely focused on explaining
what the transcripts of those exchanges were and how they came about. The
Defense did not challenge the authenticity of those transcripts. Nothing in the
proposed cross-examination of SA TK based on the training slides would have
changed the ad Appellant responded to, the messages he received from “Tina,”
or the indecent language or images of his penis that Appellant intentionally
transmitted to someone he believed to be a 14-year-old child.
As for the “unauthorized” operation, as described above, the record in
Smith indicates it was not unauthorized as Appellant insists. Whether SA TK
would have provided similarly puzzling testimony on cross-examination in Ap-
pellant’s case as he did in Smith is speculative. Even if he had initially done
so, presumably he would have clarified that the AFOSI commander in fact ap-
proved the plan, and that it did authorize “Plan B,” “Tina”-type operations, just
as he did in Smith.
Accordingly, we find the nondisclosures, even if they had been erroneous,
were harmless beyond a reasonable doubt.
C. Expert Testimony
1. Law
A military judge’s decision to admit or exclude expert testimony is reviewed
for an abuse of discretion. United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F.
2010). “A military judge abuses his discretion when: (1) the findings of fact
13
United States v. Dowd, No. ACM 39073
upon which he predicates his ruling are not supported by the evidence of rec-
ord; (2) if incorrect legal principles were used; or (3) if his application of the
correct legal principles to the facts [was] clearly unreasonable.” Id. (quoting
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
Military Rule of Evidence (Mil. R. Evid.) 702 governs the testimony of ex-
pert witnesses in a trial by court-martial. The Rule provides:
A witness who is qualified as an expert by knowledge, skill, ex-
perience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to under-
stand the evidence or to determine a fact in issue; (b) the testi-
mony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of
the case.
The United States Court of Appeals for the Armed Forces (CAAF) has ar-
ticulated six factors for military courts to analyze to determine whether a pro-
ponent of expert testimony has met the Mil. R. Evid. 702 criteria: “(1) the qual-
ifications of the expert; (2) the subject matter of the expert testimony; (3) the
basis for the expert testimony; (4) the legal relevance of the evidence; (5) the
reliability of the evidence; and (6) that the probative value of the expert’s tes-
timony outweighs the other considerations outlined in [Mil. R. Evid.] 403.” 6
United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005) (citing United States
v. Houser, 36 M.J. 392, 397 (C.M.A. 1993)). Though Houser predates the lead-
ing United States Supreme Court decisions in this area, Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Car-
michael, 526 U.S. 137 (1999), Houser is consistent with these decisions and
continues to guide the admission of expert testimony in courts-martial.
Billings, 61 M.J. at 166.
However, “while satisfying every Daubert or Houser factor is sufficient, it
is not necessary.” United States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007).
The military judge’s inquiry is flexible and tied to the facts of the particular
case. Id. (citing Kumho Tire Co., 526 U.S. at 150).
6 Mil. R. Evid. 403 provides “[t]he military judge may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the members, undue delay, wasting
time, or needlessly presenting cumulative evidence.”
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United States v. Dowd, No. ACM 39073
2. Additional Background
After the Government rested its case for findings, the Defense sought to
introduce the expert testimony of Dr. MD, a civilian psychologist who served
as their expert consultant. The Government advised the military judge it would
object on various grounds. The military judge conducted a hearing outside the
presence of the court members during which he received testimony from Dr.
MD and argument from counsel. The military judge also considered Dr. MD’s
curriculum vitae and the areas of proposed testimony as set forth in a 25-slide
presentation the Defense intended to use during her testimony.
Dr. MD testified on direct examination that she was a developmental psy-
chologist and an associate professor of psychology who divided her time be-
tween teaching and research. After detailing her educational background, she
testified she began specializing in language and technology in 2008, and pub-
lished her first article on sexting in 2011. She had testified previously in a
court-martial as an expert in psychology, technology, and sexuality. She had
also testified in a civil case as an expert in sexting. Dr. MD had not spoken
with Appellant; her knowledge of the case was based on a review of text mes-
sages and emails between Appellant and “Tina.” Much of the data that she and
other researchers rely on comes from university students, but she was comfort-
able generalizing the data to all young adults. Trial defense counsel proposed
to have Dr. MD recognized as an expert in the fields of psychology, technology
and sexuality; sexting; and sexting and relationships.
Under questioning by trial counsel, Dr. MD testified she was neither a clin-
ical psychologist nor a forensic psychologist. She did not typically apply her
methodologies in trials or criminal settings. Her research did not focus on mil-
itary members or minors. She had “no idea” if the type of information she
worked with in the field of psychology and technology was used by practitioners
in other fields of psychology. Her research generally involved participants who
responded based on actual sexual relationships they had engaged in. The mil-
itary judge stated he would accept Dr. MD’s “qualifications solely for the pur-
poses of this hearing in order to figure out what these mean, psychology/tech-
nology/sexuality/sexting/relationships.”
Trial defense counsel then resumed questioning to develop the substance
of Dr. MD’s proposed testimony regarding Appellant’s case. Dr. MD described
two different tools used to measure coercion or control in relationships: the
Sexual Coercion in Intimate Relationships Scale (SCIRS) and the Controlling
Behaviors Scale, Revised (CBS-R). Dr. MD explained the SCIRS is a scale that
measures sexual coercion by reference to “physical acts, threats, . . . hints of
violence, hints of taking away resources. . . . all sorts of subtle tactics.” The
CBS-R identifies particular tactics of emotional control and other controlling
behavior in a relationship, such as “calling someone unpleasant names” and
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United States v. Dowd, No. ACM 39073
“threats to leave the relationship.” According to Dr. MD, applying the SCIRS
and CBS-R to the correspondence in this case evinced “Tina” employed coercive
or controlling behavior toward Appellant in the form of persistence by repeat-
edly reinitiating the conversation, threats to self-esteem by calling Appellant
“boring,” and threats to leave the “relationship” by at one point writing “ok well
whatevs was nice meetin u” [sic].
Dr. MD then described a third tool she used to analyze the Appellant and
“Tina’s” interaction, the Linguistic Inquiry and Word Count (LIWC). She ex-
plained the “LIWC is a software program that takes a text and places the words
that are in [the LIWC’s] dictionary [of 6400 words] into meaningful categories.”
The LIWC has existed since the 1990s and has been used in “hundreds” of peer-
reviewed articles. Dr. MD applied the LIWC to the text message transcript
between Appellant and “Tina” to measure the “domains” of “positive emotion,”
“analytic thinking,” and “clout” on a scale of 0 to 100. Dr. MD explained “[c]lout
refers to your social status in the conversation or leadership that it displays
through either speaking or writing.” The result of her analysis was that both
Appellant and “Tina” exhibited positive emotion, but that “Tina’s” messages
exhibited higher scores in analytic reasoning and clout. However, Dr. MD
added that she had “no frame of reference to provide the jury members with
regard to the magnitude of these differences and what they mean from a prac-
tical sense.”
Dr. MD summarized her conclusions as follows:
I would say clinically that I can see in the chat transcripts there
is evidence of coercion, as it’s been defined in the relational lit-
erature. There is evidence of control as it’s been defined in the
relational literature and there has been evidence of psychologi-
cal aggression as it is evidenced in the literature by [SA TK].
...
I also just want to say one more thing, which is [Appellant], the
reactions that he had each time were very consistent, and they
are consistent with a compensatory response as well, so that is
something that I think needs to be considered.
On cross-examination, Dr. MD reiterated that the research she relied on
generally drew on adults reporting on committed intimate relationships, and
did not involve children. She also acknowledged portions of her analysis re-
quired subjective interpretation on her part. She also agreed the creators of
the LIWC described it as, “like all text analysis tools . . . a relatively crude
instrument” that “makes many errors in identifying and counting individual
words.” Moreover, she agreed the LIWC does not understand irony, sarcasm,
16
United States v. Dowd, No. ACM 39073
metaphor, or innuendo, nor does it recognize misspelled words. She edited por-
tions of the text messages in order to make them comprehensible to the LIWC.
Dr. MD further agreed that her research normally involved transcripts that
were substantially longer, and therefore more reliable, than the texts involved
in this case.
In response to questioning by the military judge, Dr. MD stated her LIWC
analysis was based only on the text message transcript and did not include the
email transcript. She testified she was unaware of the LIWC, a research tool,
being used as evidence in any federal, state, or military trial. She was also
unaware of any research that applied the SCIRS, CBS-R, or LIWC to a situa-
tion involving a 22-year-old man engaging what he believes to be a 14-year-old
girl in conversation over the internet, although she felt comfortable generaliz-
ing the research she knew of to that situation.
After receiving arguments from counsel, the military judge issued an oral
ruling that Dr. MD would not be allowed to give the proffered testimony, which
he subsequently supplemented in a written ruling. The military judge made
extensive findings of fact, including adopting as fact the substance of Dr. MD’s
hearing testimony. However, applying the Houser factors, the military judge
found the Defense had failed to carry its burden to compel the proffered testi-
mony.
Although the military judge found Dr. MD had expertise in the areas of
psychology, technology and sexuality, he found “little if any legal relevance to
the testimony.” With respect to her SCIRS and CBS-R analysis, the military
judge found Dr. MD’s “application of undefined terms does nothing to help the
members assess the naturally, easily interpreted conversations between ‘Tina’
and [Appellant].” He continued:
As to the LIWC analysis, this is also of no import in large part
because the context of the conversations in this case is an assess-
ment of a discussion between [Appellant] and who he believed to
be a 14-year-old girl. The relative positions of the parties does
nothing to assist the members in assessing whether [Appellant]
conveyed the words captured in the messages, if he had the req-
uisite intent to gratify his sexual desires by words spoken, or if
[Appellant] was entrapped.
Furthermore, he found Dr. MD’s testimony regarding Appellant’s motivations
to be speculative and “wholly improper in light of the evidence presented. As
opposed to cases in which a psychologist can help to explain evidence which
might be perceived to be counter-intuitive, Dr. [MD’s] testimony does no more
than create baseless speculation as to [Appellant’s] thoughts and beliefs.”
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United States v. Dowd, No. ACM 39073
The military judge also found the proffered testimony unreliable as applied
to Appellant’s case. With respect to Dr. MD’s SCIRS and CBS-R analysis, he
found “the lack of any defined terms appears to result in her analysis being
untestable and not subject to any objective assessment or challenge.” In addi-
tion, Dr. MD did not provide any research or explanation for applying the re-
search data she relied on to a case involving exclusively electronic communica-
tions between a 22-year-old man and a 14-year-old girl. With respect to the
LIWC analysis, Dr. MD did not testify to any quantifiable error rate or ade-
quate indicia of reliability. He also noted “she testified that LIWC has never
been applied in a criminal setting, and it was her belief that forensic psycholo-
gists were unaware of the tool even after more than 25 years in existence . . .
which may also shed light on the program’s reliability and usefulness in a crim-
inal setting.” Further, he found Dr. MD’s “intended application of the general
psychological notions of belongingness and motivation is nothing more than
speculation.”
Finally, the military judge found “the incredibly limited probative value of
Dr. [MD’s] testimony is substantially outweighed by the danger of confusion,
prejudice and potential waste of time.” Accordingly, the military judge granted
the Government motion to exclude the proffered testimony. However, upon a
Defense motion for reconsideration, the military judge permitted Dr. MD to be
qualified as an expert in the field of psychology and “to testify generally about
psychological issues applicable to all people related to the desires of humans to
belong to a group, to engage in relationships, as well as their motivations to
act in these settings.”
Before the members, Dr. MD did testify as an expert in psychology. She
described the fundamental human needs to belong and for self-esteem; she tes-
tified that insults or rejection can threaten these needs; she explained that
humans who feel their self-esteem threatened may respond with compensatory
behavior intended to display a perceived strength; and she testified that such
threats may also impair one’s self-control and lead to riskier behaviors. Dr. MD
did not testify regarding any specific aspect of Appellant’s case.
3. Analysis
We find no abuse of discretion by the military judge. His findings of fact
generally set forth the procedural history of the case, the record of email and
text correspondence between Appellant and “Tina,” and Dr. MD’s hearing tes-
timony, and was not clearly erroneous. He applied the appropriate six-factor
analysis for admissibility of expert testimony the CAAF set forth in Houser.
Furthermore, his application of the Houser factors to Dr. MD’s proffered testi-
mony was not “clearly unreasonable.” Ellis, 68 M.J. at 344.
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United States v. Dowd, No. ACM 39073
The record supports the military judge’s conclusion that the proffered tes-
timony had little relevance to the court-martial. The correspondence between
Appellant and “Tina” could be easily understood by the court members or any
lay person. Dr. MD’s subjective analysis applying terms such as “coercion” and
“aggression” drawn from a specific academic context of psychological research
would be of minimal assistance to the members in following the military
judge’s instructions. Dr. MD agreed the LIWC analysis, an automated process
of sorting words in a transcript into categories, was a “relatively crude instru-
ment” that generated numerical scores whose relative significance in this case
she could not explain “from a practical sense.”
The record also indicates the reliability of Dr. MD’s analysis was highly
questionable in the context of Appellant’s trial. Her testimony largely drew on
surveys of adults in committed sexual relationships of substantial duration.
Dr. MD was unaware of any research involving the circumstances of this case,
i.e., a solely electronic correspondence between a 22-year-old man and a pur-
ported 14-year-old girl who had never met, much less formed an intimate rela-
tionship. She did not explain how her subjective application of SCIRS or CBS-
R indicators might be objectively tested for accuracy. Moreover, with respect
to the LIWC, Dr. MD was unaware of it ever having been employed in a crim-
inal trial and doubted forensic psychologists were even aware of the existence
of this research tool. In addition, Dr. MD overlaid a layer of subjectivity onto
this “crude instrument” by limiting her analysis to the text messages rather
than email and by editing portions of the transcript to make in more compre-
hensible to the software.
Finally, the record further indicates the slight evidentiary value of the prof-
fered testimony is substantially outweighed by the dangers of confusion, unfair
prejudice, and waste of time. Again, the correspondence between Appellant
and “Tina” was readily understandable to the court members. Injecting Dr.
MD’s subjective coercion analysis based on surveys of questionable applicabil-
ity or the LIWC results that were not designed for forensic use would have
invited unnecessary and unhelpful confusion and delay.
Based on the record, we cannot say the military judge’s ruling was “a clear
error of judgment” or “manifestly erroneous.” Sanchez, 65 M.J. at 148 (citation
omitted).
D. Sentence Appropriateness
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing Cole, 31 M.J. at 272). We may affirm
only as much of the sentence as we find correct in law and fact and determine
should be approved on the basis of the entire record. Article 66(c), UCMJ. “We
assess sentence appropriateness by considering the particular appellant, the
19
United States v. Dowd, No. ACM 39073
nature and seriousness of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Sauk, 74 M.J. 594,
606 (A.F. Ct. Crim. App. 2015) (citing United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion to deter-
mine whether a sentence is appropriate, we have no power to grant mercy.
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
Appellant rests his argument on a comparison of his sentence with the sen-
tences of three other Airmen convicted of similar offenses of attempted sexual
abuse of a child resulting from AFOSI operations featuring “Tina.” Appellant
notes that in each of these other cases the accused received a shorter term of
confinement than the 20 months he received, ranging between 4 and 12
months. Therefore, Appellant contends, his sentence was highly disparate and
unduly severe, and this court should grant unspecified appropriate sentence
relief. We disagree.
In requesting us to compare his sentence with those of other accuseds, Ap-
pellant bears the burden of demonstrating these cases are “closely related” to
his and, if so, that the sentences are “highly disparate.” United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999). The CAAF has indicated cases are “closely
related” if there is a “direct nexus between the servicemembers to be com-
pared,” for example, involvement in a common crime or in parallel schemes.
Id. If Appellant carries that burden, then the Government must show a ra-
tional basis for the differences. Id. We recognize that under Article 66(c) we
may, in determining whether a sentence is appropriate, consider the outcomes
of other non-closely-related courts-martial even though we are not required to
do so. See United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001). However,
unless the cases are closely related, “[t]he appropriateness of a sentence gen-
erally should be determined without reference or comparison to sentences in
other cases.” United States v. LeBlanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App.
2015) (en banc) (citing United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985)).
We do not find the cases Appellant cites to be “closely related” to his own,
as the CAAF has explained and we have interpreted that term. See, e.g., id.Nothing in the record indicates Appellant was aware of any of these other Air-
men, much less that he was involved in a common crime or parallel scheme
with them. Although these other cases may have involved SA TK and “Tina,”
that does not establish a “direct nexus” between the servicemembers them-
selves. See Lacy, 50 M.J. at 288. Each case may have involved similar offenses,
but each also involved a unique specific course of criminal conduct between the
accused and “Tina,” in addition to the unique service records, other specific
20
United States v. Dowd, No. ACM 39073
aggravating, mitigating or extenuating circumstances, and individual charac-
teristics of the Airmen involved. Therefore, we decline to compare Appellant’s
sentence with those of other, unaffiliated offenders.
Turning to the particulars of the case before us, we have given individual-
ized consideration to Appellant, the nature and seriousness of the offenses, Ap-
pellant’s record of service, and all other matters contained in the record of trial.
The court members found Appellant guilty of two specifications of attempted
sexual abuse of a child. That “Tina,” unbeknownst to Appellant, did not actu-
ally exist obviously limits the victim impact, but hardly lessens his culpability.
Appellant faced a maximum sentence of 30 years in confinement, a dishonora-
ble discharge, total forfeiture of all pay and allowances, and reduction to the
grade of E-1. The 20 months in confinement he received represents less than
six percent of the maximum possible term. We conclude the sentence is not
inappropriately severe based on the facts and circumstances of this particular
case.
III. CONCLUSION
The approved findings and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
21