On November 23, 2020, in an unpublished opinion, ACCA affirmed the conviction of Sergeant Jesse E. Thompson (Appellant). ACCA held that the military judge did not abuse their discretion in denying a motion to strike the victim’s (DS) testimony, finding that the government was not required to produce a timeline that was created and later lost by the victim.
Thompson opinion here.
In accordance with his plea, Appellant was convicted by a military judge sitting as a general court-martial of one specification of adultery, in violation of Article 134, UCMJ. Contrary to his plea, Appellant was convicted by the military judge of one specification of solicitation of production of child pornography, in violation of Article 134, UCMJ. In addition, Appellant was acquitted of taking indecent liberties in the physical presence of a child under Article 120, UCMJ. The military judge sentenced Appellant to a bad-conduct discharge and twenty-four months confinement.
On appeal, Appellant argued that the military judged erred in denying a motion to strike DS’s testimony under R.C.M. 914 after the government failed to produce a lost timeline created by DS. ACCA disagreed, affirming the military judge’s ruling, finding that the lost timeline did not qualify as a statement under R.C.M. 914, and even if the timeline was a statement, it was not in the constructive possession of the government.
Appellant first met DS when she was a minor. Their relationship progressed into regular communications and daily Skype sessions that constituted the basis for Appellant’s conviction to soliciting the production of child pornography. A civilian law enforcement investigation was initiated after DS’s mother discovered illicit photos of DS and Appellant; the case was not investigated by the Army Criminal Investigation Command (CID) until the civilian case was closed over one year later. Because of the lapse in time, DS and her mother reconstructed a written timeline to identify the dates of her in-person sexual encounters with Appellant. Though DS offered this timeline to CID during her interview, CID did not accept the timeline and advised DS to answer questions from memory. DS eventually lost the timeline. After DS’s testimony at trial, defense counsel moved to strike the testimony under R.C.M. 914, arguing that the timeline was a statement that related to the subject matter of her testimony and that the timeline was in the constructive possession of the government.
O n appeal, Appellant argued that the timeline qualified as a statement, relying on a Ninth Circuit decision which held that a witness’s signed diary qualified as a statement once submitted to the government. Following this reasoning, Appellant argued that the timeline was a statement because DS created the document and offered it to CID during her interview. However, ACCA distinguished the Ninth Circuit decision by noting that unlike the diary, the timeline was not signed by DS and was not made contemporaneously with the events in question. In addition, the government never accepted the timeline, and DS did not rely upon the contents of the timeline at trial. Thus, ACCA concluded that the lost timeline was not a statement and affirmed the military judge’s ruling.
Assuming arguendo that the lost timeline was a statement, ACCA also held that the government was not in possession of the timeline. Specifically, Appellant argued that although the timeline was never in the physical possession of the government, it was in the government’s constructive possession. Rejecting this argument, ACCA held that the doctrine of constructive possession—which typically applies to the sharing of Bradymaterial between federal and state prosecutors—does not extend to an interaction between law enforcement and a victim.
Finally, in a footnote, ACCA briefly concluded that even if the military judge did err, the probative value of obtaining the timeline would be “extremely low” for the defense. Specifically, ACCA found little probative value in a timeline that detailed in-person sexual encounters when Appellant was acquitted of the in-person indecent liberties charge. In addition, defense counsel was already able to effectively exploit the impeachment value of the timeline on DS’s cross-examination by suggesting that that the document was contrived to support false allegations. Accordingly, ACCA affirmed the military judge’s findings and sentence.
In a footnote, ACCA also affirmed the military judge’s decision to admit DS’s digital journal entries detailing her relationship with Appellant as a prior consistent statement under Mil. R. Evid. 801(d)(1)(B)(ii). The entries were admitted to rebut the implication that DS possessed a motive to fabricate allegations against Appellant.
United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
LT Chris Clifton