(Knock, knock) “The door is open!”

No—wait, the door was not open; yes, it was—no, it wasn’t. The CAAF has decided United States v. Steen. Appellant was convicted of wrongfully introducing marijuana onto a military installation and then distributing it. The members sentenced Appellant to a BCD, fifteen days confinement, and reduction to E-1.
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The CGCCA found a harmless error in admitting text messages about other drug related conduct and affirmed. A three-two majority at CAAF agreed with the CGCCA that the military judge abused his discretion by admitting evidence as propensity but disagreed the error was harmless.  At trial,
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Appellant moved to suppress the text messages as inadmissible character evidence. The prosecution responded, asserting they were admissible under M.R.E. 404(b) for another purpose—to show that Appellant was out of marijuana a few days after he allegedly sold it to SA Harris. The theory was that this demonstrated a plan to acquire and distribute marijuana continually. The military judge granted the motion to suppress but advised the prosecution he would reconsider his ruling if the prosecution thought the defense opened the door to the evidence.

The accused having testified; the military judge then ruled he had opened the door to the ‘suppressed’ evidence. The military judge also instructed the members how they could consider Appellant’s answers in cross-examination about the text messages.

​Consider evidence that [Appellant] may have texted about purchasing or smoking marijuana in the days following the alleged misconduct for the limited purpose of its tendency, if any, to prove the Government’s allegation that [Appellant] allegedly needed to replenish his supply of marijuana based on their allegation that [Appellant] had sold marijuana to Seaman Apprentice Harris. You may not consider this evidence for any other purpose, and you may not conclude from this evidence that [Appellant] is a bad person or has general criminal tendencies and that he, therefore, committed the offenses charged.
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​In a case of conflicting testimony, CAAF added that the improper evidence added “new ammunition” to the prosecution that undermined the credibility of Appellant’s case. The government subsequently bears the burden of showing the error was harmless. The majority applied the four-factor test in United States v. Yammine (the strength of the Government’s case, the strength of the defense’s case, the materiality of the evidence in question, and the quality of the evidence in question). They then held that the government did not meet their burden of proof in showing the admission of the text messages were harmless. United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010).

Both Judge Sparks and Judge Maggs dissented. Judge Sparks, joined by Judge Maggs, stated that the introduction of the text messages was a proper rebuttal to Appellant’s broad assertion that he never failed any of the twelve to fifteen drug tests while in active duty. Appellant’s testimony suggests a specific character trait. * Thus, admission of the text messages was a logical and proper impeachment of the offered testimony. It follows that the erroneous instruction of the military judge was harmless.

Judge Maggs, joined by Judge Sparks, took a different approach in his dissent. Judge Maggs briefly agreed with Judge Sparks’ admissibility determination but then turned his attention to realigning the law of the case doctrine with the cross-appeal doctrine. Rejecting Appellant’s view that issues decided in lower courts are considered the law of the case in subsequent proceedings if not raised in a cross-appeal, Judge Maggs urges this court to follow the Supreme Court in Christianson. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (“law of the case cannot bind this Court in reviewing decisions below”). Thus, Appellant’s petition for review “exposed the entire case for review,” and this Court has the discretion to consider the issue of admissibility even if the Government did not certify that issue.

​Judge Maggs pointed to the cross-appeal doctrine as support for this conclusion. The cross-appeal doctrine allows the prevailing party to defend the lower court’s judgment on any ground “whether or not that ground was relied upon, rejected, or even considered by [the lower courts].” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979). However, Judge Maggs concludes that “it makes no sense to expect a party that prevails in a lower court to appeal the judgment of that court” as it would prove to be a waste of judicial resources. United States v. Savala, 70 M.J. 70, 79 (C.A.A.F. 2011). Affirm the CGCCA decision, says Judge Maggs.

Noelle Peragine, at the CAAF Desk.

​(Ed. Note. Broad testimonial denials are dangerous to an accused when known (or unknown [do clients always tell you everything?]) other conduct exists. I tend to agree with Judge Maggs but would hope a Mil. R. Evid. 403 analysis might work to exclude the evidence. “Danger, Will Robinson.”)