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Recent ACCA Opinion: United States v. Cleveland

1/29/2021

4 Comments

 
​On December 28, 2020, the United States Army Court of Criminal Appeals found that a military judge did not abuse their discretion in admitting a sexual assault victim’s statements as residual hearsay given the exceptional circumstances of the case for which the Appellant was found guilty.

Cleveland opinion here.
            An enlisted panel sitting as general court-martial convicted appellant of one specification of rape of a child, two specifications of sexual abuse of a child, and one specification of communicating a threat, in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.  §§ 920b and 934.  The panel sentenced appellant to a dishonorable discharge and confinement for eight years.  The convening authority approved the adjudged sentence and credited appellant with four hundred thirty days of pretrial confinement credit.
 
            On February 20, 2020, the convening authority withdrew the prior action and substituted a new action.  The convening authority approved the findings of guilty for Specifications 1 and 4 of Charge II (rape and sexual abuse of a child in violation of Article 120b, UCMJ) and the Specification of Charge III (communicating a threat in violation of Article 134, UCMJ).  The convening authority disapproved the finding of guilty for Specification 2 of Charge II.  After reassessing the sentence, confinement was approved for five years and two hundred eighty-five days and appellant was credited with four hundred thirty days of pretrial confinement credit, as well as the time served between the date of trial and the date of action.
           
Background
 
            Appellant raped and sexually assaulted his biological daughter, HC, when she was between the ages of seven and ten.  Appellant was convicted of penetrating HC’s vulva with his finger on multiple occasions, and touching HC’s genitals with his hand on multiple occasion.  HC reported the sexual abuse to her mother, JC, through a handwritten note when she was ten years old. A few days later HC was interviewed by PS, a child forensic interview specialist.  During the interview, HC detailed several instances when appellant sexually abused her.
 
            Within a week of HC’s interview, appellant was interviewed by a local civilian law enforcement agent.  During the interview the appellant made several admissions indicating the sexual abuse over the past three years including penetrating the victim’s vagina with his finger and touching her vagina with his hand.
 
            Within a couple months of these events, HC recanted her allegations that she was sexually abused and testified that appellant did not sexually abuse her.
 
            Pretrial, the government moved to admit the video of HC’s forensic interview into evidence as residual hearsay under Mil. R. Evid. 807.  The military judge denied the government’s motion because HC’s statement was not the “best evidence on the issue of whether the alleged abuse occurred.”  The military judge determined the victim’s testimony would be the best evidence.  The government appealed the ruling pursuant to Article 62, UCMJ.  ACCA then issued an opinion finding that the military judge erred. At this time, the court only addressed the issue of whether HC’s statement was more probative than any other evidence and did not address the remaining requirement for admission under the residual hearsay exception.
 
            The government renewed its motion to admit HC’s statement under the residual hearsay exception.  The military judge granted the motion finding the statement had circumstantial guarantees of trustworthiness.  The statement being a structured child forensic interview and the provided expert testimony regarding the techniques used to take the statement were vital to establishing its trustworthiness.  Neither party disputed that the statement was offered as evidence of material facts.  The military judge recognized the court’s opinion holding the probative value of the statement.  Finally, the military judge held the statement would best serve the purposes of the rule of evidence by providing the fact-finder with “more information on which to make its determinations.”
Law
 
            On appeal, appellant claims the military judge abused his discretion by admitting HC’s statement as residual hearsay. Appellant argues that HC’s prior statement did not possess a sufficient guarantee of trustworthiness to warrant admission.  The Court disagrees.
 
            Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if not covered by a hearsay exception in Mil. R. Evid. 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interest of justice.
 
          In reaching their decision, ACCA states, “[t]he Supreme Court has held that the ‘particularized guarantees of trustworthiness’ required by the residual hearsay rule ‘must be shown from the totality of the circumstances,’ but that ‘the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.’”  Even though ACCA recognized that Congress intended the residual hearsay exception to be used “very rarely, and only in exceptional circumstance,” they found this case to be one of those few exceptional circumstances because of the following four circumstances: (1) the declarant is a child sex abuse victim which allows for a deferential standard of review; (2) HC testified at trial and was subject to cross-examination; (3) HC’s statement is detailed and was conducted in a non-suggestive manner; and (4) appellant’s statement corroborated HC’s statement.

Additionally, ACCA addressed HC's recantation of her prior statement, finding that the military judge's specific findings supported his conclusion that the statement was trustworthy.  

Edward Flynn

Intern

4 Comments
Donald G Rehkopf
1/29/2021 03:12:48 pm

"At trial, HC testified that appellant did not sexually abuse her."

Presumably, HC [the purported victim] testified under oath at trial. If that is true, he was convicted on unsworn, hearsay . . . only. Something is wrong with a system that permits this.

Reply
1984
1/30/2021 01:50:59 am

Well I got a story for you.

When I was at Hurlburt, circa 2005-2006 we had these guys named Tarver, Robinson, and Brandon (omitting complete names).

Robinson and Tarver were roommates and smoked weed. Robinson moved out and got SrA below the Zone (early promotion).Brandon became Tarver's new roomate.

Robinson visits Tarver and they talk about smoking (Robinson quit). Didn't realize Brandon was there playing video game listening until Brandon makes a joke. Fearing his own career (or maybe to get brownie points) Robinson narcs Tarver out and says he saw Brandon smoke too.

Only Brandon doesn't smoke. So he passes the urinalysis (Tarver did not). They also gave one to Robinson but he passed.

They gave Brandon an Article 15 despite having a negative urinalysis. Brandon turns it down for a courts-martial and is put on garbage detail. Brandon gets drunk, dui and shows up late to work. They add a UA charge (which they got a conviction for, not the drug charge). He gets a General and is kicked out.

Tarver gives an unsworn statements saying how sorry he is and will not do drugs again. Gets a few months, no BCD. Hurlburt JAG is pissed, and gets an informant to say that Tarver stated he couldn't wait to do drugs when he got out.

The CA and his JAGs (Von Wald and Tom Posch) used that as an excuse to disapprove the entire trial. So now Tarver gets a new trial and a charge for lying on an unsworn statement (can't remember what the article was used for that charge).

The new Judge gave Tarver an even lesser sentence and reprimanded the Government.

While this was going on they were prosecuting a Major for very small inconsistencies in his travel voucher.

My Judge would later reprimand the Government for all this as a reason why he was granting my Article 10 motion. He also noted the Government was prosecuting me for "attempting to disobey an order (not to read other peoples emails, which only applied on base, I was 1,000 miles away at the time)" and "disobeying an expired no contact order" (Posh testified that it was not clearly illegal, yet they were charging me for it). Finally, disrespect to a JAG officer (Wendy Davis) by saying her recommendation sucks. I was already punished for it while serving my first court-martial sentence. Guess Posch didn't read US v. Voorhees (Double Punishment for a minor offense prohibited, think it's 11 CMR 121 if memory serves).

Posh is now a AFCCA Judge, to give you an idea what kind of people they put on that court. It's not for their perfect attendance record. He was appointed by the TJAG who was at the time his boss (Rockwell took over from Von Wald). Also Posh conducted a not-so-surprise dorm inspection of my room while I was waiting for my court date. I had missed the last two while on leave.

Interesting recusal motions that will be filed once my Federal charge for violating 18 USC 1030 gets overturned next month (US v. Van Buren) and I file my last Error Coram Vobis petition. I would like to see how the AFCCA will weasel their way out of US v. Teague. Fortunately, it will be done without Posh's input.

Reply
Nathan Freeburg
1/29/2021 03:33:03 pm

Don,

It appears that he also confessed (whether true or not) which was then corroborated by unsworn hearsay....

Frames the matter a bit differently I think.

Reply
Donald G Rehkopf
1/29/2021 03:48:37 pm

Well, as typical, the opinion isn't really all that clear - he made admissions, but . . . Then there's the issue of the prosecution's "expert" in child interviewing techniques, which does not appear to have been challenged as "human lie-detector testimony: "LS opined that it was significant that HC was willing to identify for the interviewer what happened and what did not happen."

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