United States v. Steen, decided Monday by CAAF, seems like a case unlikely to snag a grant, let alone generate vigorous dissents. Petty Officer Steen prevailed. But I predict Steen—or, more precisely, Judge Maggs’s dissent in Steen—will be cited frequently by the government.
Seaman Apprentice Harris was busted by civilian police with two grams of marijuana and a pipe. Unsurprisingly, the civilian police weren’t too interested, but the Coast Guard was happy to investigate. Harris said that he got his marijuana from Petty Officer Steen, his former boss, who was then on terminal leave.
A search of Steen’s phone showed that Steen and Harris had in fact been in contact around the time of the alleged distribution. It also showed that days after Steen was supposed to have given the marijuana to Harris, Steen sent text messages to civilians seeking marijuana.
Steen moved to suppress the texts as improper character evidence. The government sought to admit them under MRE 404(b), arguing that the texts showed that, having given marijuana to Harris, Steen needed to replenish his supply. The military judge kept it out, but said he’d reconsider if the defense “opened the door.”
Now who doesn’t love these but if they open the door rulings? Will Steen resist pushing on the door? Will Taggart and Rosewood put Axel Foley in the back of the cruiser and drove him uneventfully out of town? Probably not going to happen. And if it did, you wouldn’t be reading about it here.
Sure enough, Steen testified and denied selling marijuana to Harris. He also told the members (on direct!) that he had never failed any of the twelve to fifteen drug tests he had taken in the Coast Guard. The military judge found that the door had been opened. After seeing Steen’s texts asking civilians for marijuana, members convicted Steen, sentencing him to fifteen days’ confinement and a BCD.
The Coast Guard CCA found that the texts were inadmissible character evidence. But the CCA then found the error harmless and affirmed. Steen disagreed with the prejudice determination, and petitioned CAAF. The granted issue, then, asked whether the Coast Guard CCA erred by finding that the military judge’s erroneous admission of the texts was harmless.
The majority (Chief Judge Stucky, joined by Judges Ohlson and Hardy) held that the Coast Guard Court erred in its prejudice analysis. Applying the factors from United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010) (strength of the government’s case; strength of defense case; materiality of the evidence in question; quality of the evidence in question) the CAAF decided that the government hadn’t demonstrated that admission of the text messages had been harmless.
If you’ve read this far, you might be wondering why this case made it to CAAF. It’s just error correction in a minor marijuana case. Who cares?
The dissent cared. Both Judge Maggs’s and Judge Sparks’s dissents were longer than the lead opinion. And, most interesting, neither dissent concerned the granted issue.
Judge Sparks, joined by Judge Maggs, was “disappointed” that the majority dealt with “the salient issue” (the CCA’s underlying determination that the texts were inadmissible) only in a footnote. He found that the texts were fair rebuttal to Steen’s implied claim to have not been involved in marijuana while on active duty.
Judge Maggs, joined by Judge Sparks, focused neither on the granted issue of prejudice nor on the underlying admissibility determination, though he agreed with Judge Sparks on that count. Instead, Judge Maggs devoted seven pages of his eight-page dissent to a takedown of the Appellant’s argument that the law of the case doctrine foreclosed consideration of the CCA’s underlying error determination.
It’s an interesting choice. The majority didn’t rely on the law of the case doctrine, and instead expressly reached and agreed with the CCA’s error determination, albeit in a footnote. I can’t recall ever reading a dissent so devoted to an argument advanced by a party but rejected by the court.
Judge Maggs argued that under the cross-appeal doctrine, the government was free to argue that the court should affirm the CCA for reasons not raised directly in the granted issue. His dissent cites recent CAAF precedent in which the court did just that, and criticizes United States v. Doss, 57 M.J. 182 (C.A.AF. 2002), for improperly limiting CAAF’s ability to review the underlying determinations of CCAs.
Judge Maggs makes a compelling case that the cross-appeal doctrine is well established in Supreme Court precedent. In general, it makes sense that a prevailing party should not be expected to appeal, even if it won for the wrong reason. But does this doctrine have an equal claim in a system in which the government, in the form of the Judge Advocate General, can certify an issue even after CAAF grants the appellant’s issue? After all, had the Judge Advocate General of the Coast Guard been unhappy with the underlying evidentiary ruling, he could have told CAAF to review it. He did not.
One suspects that Judge Maggs wrote this discourse on the cross-appeal doctrine before the majority inserted the footnote expressly (if summarily) considering the merits of the CCA’s underlying ruling. Having gone to the trouble of writing it, he decided to go with it. So what to make of this dissent?
At a minimum, it’s clearly an issue that Judge Maggs cares a lot about. If you’re relying on law of the case, be ready to answer hard questions. Does Judge Maggs’s view hold sway with the court? All five judges reached the underlying evidentiary issue in Steen. A wise appellant will be ready to address any issue that might short-circuit a granted issue. I think we can expect to hear more about the cross-appeal doctrine in the future.
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