United States v. Ahern , 76 M.J. 194 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Sean M. AHERN, Lieutenant Colonel
United States Army, Appellant
No. 17-0032
Crim. App. No. 20130822
Argued March 1, 2017—April 20, 2017
Military Judges: James W. Herring Jr. and Michael J. Hargis
For Appellant: Kirk Sripinyo, Esq. (argued); Captain Mi-
chael A. Gold and Samuel C. Moore, Esq. (on brief).
For Appellee: Captain Samuel E. Landes (argued); Colonel
Mark H. Sydenham and Lieutenant Colonel A. G. Courie
III (on brief); Major Anne C. Hsieh and Captain Catharine
M. Parnell.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
OHLSON, and SPARKS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of one specifica-
tion of aggravated sexual assault of a child and one specifi-
cation of aggravated sexual assault by causing bodily harm,
in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2006) (amended by National De-
fense Authorization Act for Fiscal Year 2006, Pub. L. No.
109–163, § 552, 119 Stat. 3136 (2006)); one specification of
assault consummated by battery, in violation of Article 128,
UCMJ, 10 U.S.C. § 928 (2000); three specifications of inde-
cent acts upon a child, and one specification of child endan-
germent, in violation of Article 134, UCMJ, 10 U.S.C. § 934(2000). The adjudged and approved sentence provided for
dismissal and confinement for seventeen years and six
months.
United States v. Ahern No. 17-0032/AR
Opinion of the Court
The United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and sentence as approved by
the convening authority. United States v. Ahern, No. ARMY
20130822, 2016 CCA LEXIS 528, at *28, 2016 WL 4488148,
at *10 (A. Ct. Crim. App. Aug. 24, 2016). We granted Appel-
lant’s petition to review the following issue:
Whether the lower court erred when it held
that the prohibition against using an admis-
sion by silence provided by Mil. R. Evid.
304(a)(2) is triggered only “when the accused is
aware of” an investigation contrary to the plain
language of the rule.
We hold that Appellant waived his Military Rule of Evidence
(M.R.E.) 304(a)(2) claim. The judgment of the Army Court of
Criminal Appeals is affirmed. We do not consider or decide
the question whether the prohibition provided by M.R.E.
304(a)(2) is triggered by investigation alone, or only when an
accused is actually aware of an investigation.
I. FACTS
Appellant’s convictions are all related to Appellant’s sex-
ual abuse of his stepdaughter, SS, occurring between 2004
and 2010. During the investigation, civil law enforcement
officers assisted SS and SA, Appellant’s wife, in sending
pretextual text messages and phone calls to Appellant in an
attempt to elicit incriminating responses. SS sent a text
message to Appellant, seeking an incriminating response –
Appellant did not respond. In a phone call, SA accused Ap-
pellant of sexually abusing his stepdaughter:
[SA]: So, you know, and she [my therapist]
says, you know, I have—you know—the root of
my problem is this anger. So I need to deter-
mine what is causing that anger in order for
me to deal with it. And, you know, I’ve told
her, you know, that you had an affair. I didn’t,
obviously, tell her it was with my daughter.
But, you know, I’m—what I am trying to un-
derstand is how did this happen [Appellant]?
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Opinion of the Court
[Appellant]: What?
[SA]: The whole thing with you and SS, I
mean, why? Why—why did you have to do that
with her?
[Appellant]: [SA], are you kidding me? I’m on a
phone?
As SA pressed the subject, Appellant responded, variously,
“are you nuts,” “[w]e are going through a divorce,” “[a]re you
kidding me,” “I am not going to get into this stuff,” “[t]his is
you and SS doing your thing,” “[t]his is all part of the di-
vorce,” “[this is] all part of the custody thing,” and “[y]ou’re
making all of this stuff up.”
Appellant himself moved to admit the pretextual text
message into evidence. The Government moved in limine to
admit the phone conversation between Appellant and SA in
which SA accused Appellant of sexually assaulting SS. The
Government also sought to admit a short phone call between
Appellant and SS in which Appellant hung up early in the
call. The following exchange took place between the military
judge and defense counsel:
[MJ]: … I’d like to move to the government’s
motions. I note that there are a number of
these. I was informed by counsel during an
[R.C.M.] 802 session held earlier this morning
that there are a number of these government
motions that the defense is not contesting. Is
that correct, defense counsel?
[CDC]: That is correct, Your Honor.
[MJ]: Okay. Very well.
And if I believe according to the Court’s notes,
those would be the government Motion in
Limine to Admit the Pretext Telephone Calls,
which has been marked as Appellate Exhibit
VII. I received no defense response to that mo-
tion. Defense counsel, you are not contesting
that motion.
Is that correct?
[CDC]: Correct, Your Honor.
(Brackets in original.) Later, the Government admitted the
phone call into evidence, and the following exchange took
place:
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Opinion of the Court
[ATC]: Your Honor, the government moves to
admit Prosecution Exhibit 3 for identification
into evidence.
MJ: Objections, defense?
[CDC]: No objections.
The Government then played the phone call for the panel.
During closing argument, trial counsel argued that Appel-
lant’s failure to deny the accusations made in the text mes-
sages and phone calls was evidence of his guilt:
In Prosecution Exhibit 3, panel members, that
is the pre-text phone call between [SA] and
[Appellant]. You have to listen to that because
[SA] says verbatim, “I told her—I told my
counselor we [sic] were having an affair.” And
what does [Appellant] say? Does he ever say
what are you talking about? Are you crazy?
She says, we are having—“You were having an
affair with my daughter.” What would you say
if your ex-wife says this to you? What does
[Appellant] say? Listen to it. He says, “[SA],
are you kidding. I am on the phone.” Who
would say that. I am on the phone? [SA] con-
tinues, “I didn’t get the whole story, [Appel-
lant.]” Does he ever say what are you talking
about? What story? I didn’t give you a story.
Does he ever say anything like that. He says,
“I am not going into that stuff.” Panel members
that is an indicia of guilt. There is no denials
[sic] by [Appellant]. There is no evidence that
he ever denies any of this. . . . Defense Exhibit
BBB, this is a text message that [SS] sends
him saying it has come out, people are coming
to talk to me. He never denies anything. Why
is that? Because he is guilty.
The defense did not object at any point during or after clos-
ing argument.
II. ACCA DECISION
At the ACCA, Appellant argued that he was under inves-
tigation at the time of the pretextual phone conversation.
Therefore, he claims, M.R.E. 304(a)(2) prohibited trial coun-
sel from arguing that Appellant admitted his guilt by re-
maining silent in response to accusations of sexual abuse.
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Opinion of the Court
The ACCA first concluded that Appellant had forfeited
his right to appeal by failing to file a motion under M.R.E.
304, which triggered plain error review. Ahern, 2016 CCA
LEXIS 528, at *11–12, 2016 WL 4488148, at *4. Next, the
ACCA concluded that the protections of M.R.E. 304(a)(2) are
triggered only when the accused is actually aware that he is
being investigated. Id. at *12, 2016 WL 4488148, at *4. Fi-
nally, the ACCA concluded that any error was not plain and
obvious. Id. at *12–13, 2016 WL 4488148, at *4. The record
was ambiguous as to whether Appellant even knew there
was a criminal investigation underway, and without that
fact, M.R.E. 304(a)(2) would not exclude the phone calls even
under Appellant’s interpretation. Id. at *21–22, 2016 WL
4488148, at *8. The ACCA also reasoned that trial counsel’s
brief argument would not have resulted in material preju-
dice to Appellant’s substantial rights for three reasons.
First, Appellant repeatedly admitted to SA that he had sex
with SS. Id. at *24, 2016 WL 4488148, at *9. Second, the
Government’s argument that Appellant was silent was
strained, as he appears to deny the accusations in the phone
call. Id., 2016 WL 4488148, at *9. Third, the same conversa-
tions that the Government argued were evidence of guilt
were argued by Appellant to be evidence of his innocence. Id.at *24–25, 2016 WL 4488148, at *9.
Notably, the ACCA suspected that Appellant’s failure to
object was likely a conscious choice. Id. at *23, 2016 WL
4488148, at *8. Nevertheless, the ACCA resolved the case on
the grounds of plain error and did not consider whether Ap-
pellant had waived his claim. Id. at *22–23, 2016 WL
4488148, at *8–9.
III. DISCUSSION
“Deviation from a legal rule is ‘error’ unless the rule has
been waived.” United States v. Girouard, 70 M.J. 5, 10
(C.A.A.F. 2011) (internal quotation marks omitted) (citation
omitted). While this Court reviews forfeited issues for plain
error, United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009), we do not review waived issues because a valid waiv-
er leaves no error to correct on appeal. United States v.
Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting United
States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)).
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Opinion of the Court
Whether an accused has waived an issue is a question of
law we review de novo. See United States v. Rosenthal, 62
M.J. 261, 262 (C.A.A.F. 2005). “Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known
right.” Gladue, 67 M.J. at 313 (internal quotation marks
omitted) (quoting United States v. Olano, 507 U.S. 725, 733
(1993)). “Whether a particular right is waivable; whether the
defendant must participate personally in the waiver; wheth-
er certain procedures are required for waiver; and whether
the defendant’s choice must be particularly informed or vol-
untary, all depend on the right at stake.” Girouard, 70 M.J.
at 10 (internal quotation marks omitted) (quoting Olano,
507 U.S. at 733).
The right at issue in this case is contained within a Mili-
tary Rule of Evidence, promulgated by the President pursu-
ant to his authority to prescribe rules of evidence for courts-
martial under Article 36, UCMJ, 10 U.S.C. § 836 (2012). 1
M.R.E. 304(a)(2) provides that “[f]ailure to deny an accusa-
tion of wrongdoing is not an admission of the truth of the
accusation if at the time of the alleged failure the person
was under investigation or was in confinement, arrest, or
custody for the alleged wrongdoing.” Appellant argues that
the military judge erred in allowing trial counsel to argue
that Appellant admitted guilt by remaining silent in re-
sponse to an accusation. But the rule underlying Appellant’s
claim also provides that his failure to object to the admission
of the phone calls constitutes waiver of his right to complain
that they were used in this fashion.
M.R.E. 304(f)(1) plainly states that claims arising under
M.R.E. 304(a)(2) are waived absent an objection:
Motions to suppress or objections under this
rule, or Mil. R. Evid. 302 or 305, to any state-
ment or derivative evidence that has been dis-
closed must be made by the defense prior to
submission of plea. In the absence of such mo-
tion or objection, the defense may not raise the
1 It is well established that principles of statutory construction
are used in construing the Military Rules of Evidence. See United
States v. Matthews, 68 M.J. 29, 36 (C.A.A.F. 2009).
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Opinion of the Court
issue at a later time except as permitted by the
military judge for good cause shown. Failure to
so move or object constitutes a waiver of the ob-
jection.
(Emphasis added.) This is not a case where the rule uses the
word “waiver” but actually means “forfeiture.” See, e.g., Rule
for Courts-Martial (R.C.M.) 920(f) (providing for “waiver”
but only “in the absence of plain error”); see also United
States v. Payne, 73 M.J. 19, 23 & n.3 (C.A.A.F. 2014) (apply-
ing a plain error analysis to R.C.M. 920(f), which states that
the failure to object constitutes “‘waiver of the objection in
the absence of plain error’”). M.R.E. 304(f)(1) does not men-
tion plain error review, and instead unambiguously provides
that any claim arising under M.R.E. 304 is waived absent an
objection.
Appellant nonetheless suggests that waiving objection to
the admission of the phone calls does not constitute waiver
of his right to object to the Government’s use of the phone
calls to argue that his silence indicates guilt. But this is a
distinction without legal support in this context, since the
entire point of the rule he seeks the protection of is to pro-
hibit the use of negative or inadequate responses to an accu-
sation as an admission or indication of guilt. See United
States v. Cook, 48 M.J. 236, 240 (C.A.A.F. 1998) (“The gist of
[the predecessor to M.R.E. 304(a)(2), M.R.E. 304(h)(3),] is
that silence by an accused who is under investigation will
not logically support an inference of guilt.”); Cf. Combs v.
Coyle, 205 F.3d 269, 285 (6th Cir. 2000) (“[T]he use of
prearrest silence may even subvert the truthfinding process;
because it pressures the defendant to explain himself or to
suffer a court-sanctioned inference of guilt, the likelihood of
perjury is increased.”). Conversely, the only purpose of ad-
mitting such responses is to argue an inference of guilt. We
further note that both M.R.E. 105 and its civilian counter-
part “place primary if not full responsibility upon counsel for
objecting to or limiting evidence.” See Manual for Courts-
Martial, United States, Analysis of the Military Rules of Ev-
idence app. 22 at A22-4 (2012 ed.).
Even without M.R.E. 304(f)(1), Appellant’s statement
that he had no objection constitutes waiver of his right to
object to this Court regarding the admission and use of his
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Opinion of the Court
pretrial statements. See Campos, 67 M.J. at 332 (“[A] valid
waiver leaves no error for us to correct on appeal”). This case
is similar to Campos. In Campos, the government moved to
admit into evidence a stipulation of the expected testimony
of an expert witness. 67 M.J. at 331. The military judge
asked Campos if he objected to the stipulation, and Campos
responded, “‘No, Your Honor.’” Id. On appeal, Campos chal-
lenged the admissibility of the expert’s expected testimony.
Id. at 332. The Court noted that while circumstances might
arise in which a “no objection” statement would not be waiv-
er, Campos’s knowledge of the nature of the testimony indi-
cated that he had intentionally relinquished his right to ap-
peal:
[T]here is no question that defense counsel had
advance notice of the substance of Dr. Arnold’s
testimony, that he reviewed the expected tes-
timony, and that he considered the impact of
the stipulation on his client’s case. At trial the
military judge presented defense counsel with
an opportunity to voice objections to the ex-
pected testimony and counsel responded that
he had no objections.
Id. at 333.
In this case too, Appellant was fully aware of the content
of the phone calls prior to their admission, and introduced
similar evidence in the form of the text message sent by SS.
Appellant had numerous opportunities to object to the ad-
mission of the phone conversations both before and during
the trial. Instead, when the Government moved in limine at
an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), hearing to
admit the phone calls, Appellant affirmatively indicated he
would not contest that motion. Later, Appellant replied that
he had “no objection” when the Government actually sought
to admit the phone calls and play them for the panel. And
when trial counsel argued that Appellant’s silence in re-
sponse to his wife’s accusations and stepdaughter’s text
message indicated his guilt, Appellant still raised no objec-
tion.
The ACCA’s application of forfeiture in the context of this
case was error. Under the clear dictates of M.R.E. 304(f)(1),
Appellant’s failure to object to the admission of the tele-
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Opinion of the Court
phone calls waives his right to object to their admission on
appeal. Moreover, under the ordinary rules of waiver, Appel-
lant’s affirmative statements that he had no objection to
their admission also operate to extinguish his right to com-
plain about their admission on appeal. See Campos, 67 M.J.
at 332–33 (finding waiver where appellant stated “‘no objec-
tion’” to the admission of testimony); United States v. Smith,
531 F.3d 1261, 1267–68 (10th Cir. 2008) (finding waiver
where the appellant “affirmatively stated that he had ‘no
objection’ to the evidence” and used the evidence in his ar-
gument). Accordingly, Appellant has waived his right to ob-
ject to the admission of the phone calls and, relatedly, their
use.
IV. DECISION
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
9