UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        BURTON, CELTNIEKS, and SCHASBERGER
                               Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Specialist NELS F. JACKSON
                             United States Army, Appellant

                                      ARMY 20120159

                       Headquarters, III Corps and Fort Hood
                       Rebecca K. Connally, Military Judge
              Colonel Travis L. Rogers, Staff Judge Advocate (pretrial)
             Colonel Susan K. Arnold, Staff Judge Advocate (post-trial)

For Appellant: Colonel Mary J. Bradley, JA; Lieutenant Colonel Christopher D.
Carrier, JA; Major Patrick J. Scudieri, JA (on brief); Lieutenant Colonel Christopher
D. Carrier, JA; Major Julie L. Borchers, JA; Captain Zachary A. Szilagyi, JA (on
reply brief and on brief in response to specified issue).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA (on brief); Lieutenant Colonel Eric K. Stafford, JA;
Major Cormac M. Smith, JA (on brief in response to specified issue).


                                     3 November 2017

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       On 16 February 2012, a panel of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of conspiracy to violate a lawful
order, one specification of willful disobedience of a superior commissioned officer,
and two specifications of abusive sexual contact with a child, in violation of Articles
81, 90, and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 890, 920 (2006
& Supp. III 2010) [hereinafter UCMJ]. The panel sentenced appellant to a
dishonorable discharge and four years confinement.
JACKSON—ARMY 20120159

       On 18 May 2015, this court set aside the findings of guilty of the two
specifications of abusive sexual contact with a child, affirmed the remaining
findings of guilty, set aside the sentence, and authorized a rehearing. United States
v. Jackson, 74 M.J. 710, 721 (Army Ct. Crim. App. 2015). In addition, this court
found appellant suffered a deprivation of his due process rights when it took 739
days from the end of his trial until the convening authority took action in the case.

       On 20 May 2016, a military judge sitting as a general court-martial convicted
appellant, contrary to his pleas, of two specifications of abusive sexual contact with
a child, in violation of Article 120, UCMJ. The military judge acquitted appellant of
an additional charge of abusive sexual contact. The military judge sentenced
appellant to a dishonorable discharge, forty-two months confinement, total forfeiture
of pay and allowances, and reduction to the grade of E-1. The convening authority
approved twenty-three months of confinement and credited appellant with 1,058
days confinement credit.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four assignments of error, two of which merit discussion but no relief. 1 First,
we consider whether appellant’s statement to Criminal Investigation Command
(CID) special agents was made voluntarily. When considering the voluntariness of
appellant’s statement, we address the application of the Jencks Act and Rule for
Courts-Martial [hereinafter R.C.M.] 914 to his suppression motion, including a
specified issue of whether the defense opened the door to testimony that may have
otherwise been barred. The second issue we address is whether the military judge
erred in admitting appellant’s entire statement. As we find that each essential
element was sufficiently corroborated, we conclude there was no error.

                                   BACKGROUND

       On 19 January 2011, appellant, in a sworn statement, admitted to touching his
fifteen-year-old stepdaughter’s (HS) breasts and buttocks in November or December
2010 while the family was watching a movie. He also admitted to touching HS’s
vagina while taking photographs when decorating their home at Christmas. While
showing his wife (AS) his sworn statement, appellant commented that his confession
“was not as bad as he thought it was.”



1
 Appellant personally raises allegations of error pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), but none warrant relief. Among the eight
unsworn issues is an allegation of ineffective assistance of counsel in that his
counsel were ineffective when they did not convince appellant to take a plea to a
“hazing/assault” type crime. We see no need to order an affidavit from counsel and
conclude an evidentiary hearing is not warranted under United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967).


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JACKSON—ARMY 20120159

       Before the first trial [hereinafter Jackson I], the government lost the tape
recordings from the Article 32, UCMJ, investigation. The defense raised several
Jencks Act motions. In response, the military judge made various findings regarding
the loss of the tapes, but ultimately did not bar the testimony of any of the witnesses
as a remedy.

      Following appellate review and remand, the government charged appellant
with an additional offense of abusive sexual contact. On 13 November 2015, the
convening authority referred the two remanded specifications of abusive sexual
contact with a child and the additional charge to a general court-martial [hereinafter
Jackson II]. 2

       Jackson II began with a series of motions, including one to suppress
appellant’s statement to CID Special Agent (SA) SK and SA MB, and a government
request to apply the “good faith” exception to R.C.M. 914 and the Jencks Act
regarding the lost recording of the Article 32, UCMJ, investigation. Ultimately, the
military judge denied appellant’s motion to suppress, granted the request for
production of the tape recording of the Article 32 investigation, and then declined to
apply a good faith exception to the failure of the government to comply, barring the
testimony of the victim, HS, as well as that of SA SK and SA MB.

      On 8 March 2016, the day of trial, the government asked for a delay as their
remaining critical witness, AS, was not willing to participate at that time. The
convening authority withdrew the charges that day.

       On 31 March 2016, the convening authority again referred the charges to trial
[hereinafter Jackson III]. The defense filed two motions: the first was a motion to
dismiss the additional charge; the second a motion to suppress appellant’s
confession, challenging the voluntariness of the confession. The defense
suppression motion had fourteen enclosures, including prior testimony and
statements of appellant, the polygraph worksheet filled out by SA SK, the prior
testimony of the defense expert from Jackson II, and the court’s Jackson II decision
refusing to apply a good faith exception.

      The defense motion stated:

                   In light of the Court’s ruling regarding R.C.M. 914,
             the Defense requests that the Court not consider the
             testimony of SA [SK] and SA [MB] in US v. Jackson 2012
             as well as not considering the testimony of SA [SK] given


2
 The referral also directed a sentencing proceeding on all charges and specifications
on which appellant was found guilty, including those on which appellant was
convicted at Jackson I and affirmed by this court on appellant’s initial appeal.


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JACKSON—ARMY 20120159

             on 16 February 2016 when ruling on the instant Defense
             Motion to Suppress Statement of [appellant].

      The government response included SA SK’s prior testimony from Jackson I
and Jackson II.

       The military judge asked if either side objected to her consideration of the
enclosures as evidence. The defense objected to the inclusion of SA SK’s testimony
on the grounds that the military judge’s prior R.C.M. 914 ruling (in Jackson II)
prohibited SA SK from testifying. The military judge stated there was no Jencks Act
issue as yet in the present case and asked defense for legal authority to apply the
Jencks Act to the motion. The defense conceded they had no authority to cite.

      At the conclusion of argument on the suppression motion, the military judge
asked defense:

             MJ: . . . You want me to consider the polygraph
             worksheet, handwritten and typed, as stated in your
             motion but yet you don’t want me to consider her
             testimony describing and clarifying that polygraph
             worksheet, is that correct, because you assert that
             [R.C.M.] 914 applies at preliminary hearings?

             DC: Yes, ma’am.

      On 10 May 2016, the military judge issued her findings of fact and
conclusions of law on the defense motion to suppress. In a footnote she stated:

             The Defense objected to the Court’s consideration of the
             Government’s enclosures of the transcripts of SA [SK’s]
             testimony from October 2011 and February 2016 on the
             basis of the Court’s prior ruling in advance of a projected
             RCM 914 issue. However, this Court is not persuaded that
             either RCM 914 or the [Jencks] Act, 18 USC sec. 3500
             (1964) prohibits use of statements at pretrial hearings, like
             suppression hearings. See generally, U.S. v. Covello, 410
             F.2d 536 (2 Cir. 1968). This Court has not found, nor was
             provided with any controlling legal authority to the
             contrary.

       The military judge made detailed findings of fact: she found appellant was
thirty-four years old; had a GT score of 119; was read his rights; the time from his
arrival at CID until his departure was seven hours; he was not under the influence of
alcohol or medication; that he was in pain; that he had three hours of sleep the night



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JACKSON—ARMY 20120159

before; and he had not eaten breakfast. Additionally, the military judge found
appellant was informed of his right to take breaks and get food but, except for one
break, he did not ask for a break nor was he offered one.

       The military judge relied on details from SA SK’s prior testimony, as well as
from SA SK’s worksheet, and appellant’s prior testimony to arrive at her findings of
fact. The military judge concluded that under the totality of the circumstances
appellant’s statement was made voluntarily and she denied the defense motion.

       At trial the government introduced appellant’s statement through the
testimony of AS, his now ex-wife. She testified as having seen the confession and
discussed it with appellant. The military judge did not consider the testimony of the
victim on the basis of the violation of R.C.M. 914 and the Jencks Act. AS was the
main witness to provide corroboration to the events; she testified that the family was
in the living room watching a movie and HS lay on the couch next to appellant. HS
asked appellant to scratch her back. AS testified that in December 2010 the family
was posing for Christmas photographs and she took pictures of appellant holding
HS. The government introduced the Christmas photos and some of HS’s medical
records. After various objections, the military judge admitted part of the records.

        The issue of whether the confession was corroborated was fully litigated. The
defense counsel produced a chart with what they deemed were forty-six essential
facts. The military judge made independent findings of what she deemed were
essential. She discussed her reasoning and findings on the record. Specifically she
stated:

             Here, although there was no eye witness to the criminal
             act itself, this court finds that the corpus delicti does not
             require corroboration in this case. There is sufficient
             evidence that a criminal act, to include direct and
             circumstantial evidence, occurred. The criminal act
             occurred, including the direct and circumstantial evidence.
             The court finds that the essential facts are the following:
             time, place, persons involved, access, opportunity,
             method, and manner.

       The military judge went on to lay out what she found as essential facts and
how they were corroborated. She then admitted appellant’s 19 January 2011
statement. The defense asked the military judge to reconsider her ruling. The
military judge agreed and provided additional details and reaffirmed her decision to
admit the statement.




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JACKSON—ARMY 20120159

                               LAW AND DISCUSSION

                                 A. Motion to Suppress

       “We review a military judge’s ruling on a motion to suppress for abuse of
discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing
United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000)). “In reviewing a
military judge’s ruling on a motion to suppress, we review factfinding under the
clearly-erroneous standard and conclusions of law under the de novo standard.”
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus, on a mixed
question of law and fact . . . , a military judge abuses his discretion if his findings of
fact are clearly erroneous or his conclusions of law are incorrect.” Id. The abuse of
discretion standard calls “‘for more than a mere difference of opinion. The
challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.’” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).

       As a starting point, the military judge’s conclusion that R.C.M. 914 and the
Jencks Act do not apply to a pretrial suppression motion is clearly erroneous. The
plain language of R.C.M. 905 states that “R.C.M. 914 shall apply at a hearing on a
motion to suppress evidence under subsection (b)(3) of this rule.” R.C.M. 905(k).

       Appellant argues that the military judge’s ruling in Jackson II dictates the
result in Jackson III; that the military judge had to find there was no good faith
exception to the Jencks Act, and that she had to bar the testimony of SA SK. This is
also incorrect. When the convening authority withdrew the referral in Jackson II,
the motions and rulings in that case became void. The military judge’s rulings on
motions from that case were not final judgements as described in R.C.M. 905(g).

       We will not speculate as to whether the military judge would have come to the
same conclusion regarding the testimony of SA SK if she had properly applied
R.C.M. 914. 3 The issue of the potential Jencks Act violation and appropriate remedy
are mooted by the defense opening the door by introducing testimony of the
individual they assert should not be allowed to testify.



3
  While the facts of the case are the same in Jackson III as when the military judge
made her ruling in Jackson II, the limited nature of this motion could have led to a
different result. The purpose of the Jencks Act and R.C.M. 914 is not to punish the
government, but to ensure the defense can impeach a testifying witness. Given the
posture of the case in Jackson III—SA SK had testified on three prior occasions,
including being subject to cross examination by individuals who were present during
the missing testimony—it is hard to see how the defense was prejudiced by the
missing Article 32 tape as it relates to SA SK’s statement.


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JACKSON—ARMY 20120159

         As the United States Supreme Court has explained: “‘[The] central purpose of
a criminal trial is to decide the factual question of the defendant’s guilt or innocence
. . . .’ To this end it is important that both the defendant and the prosecutor have
the opportunity to meet fairly the evidence and arguments of one another.” United
States v. Robinson, 485 U.S. 25, 33-34 (1988) (internal citations omitted and
emphasis added). The Supreme Court reasoned that “‘the protective shield of the
Fifth Amendment should not be converted into a sword that cuts back on the area of
legitimate comment by the prosecutor on the weaknesses in the defense case.’” Id.
at 32 (citation omitted).

       Similarly, the United States Court of Appeals for the Armed Forces (CAAF)
has found that a party is sometimes permitted to introduce otherwise inadmissible
evidence if another party “opens the door” for rebuttal. See United States v. Martin,
75 M.J. 321, 327 (C.A.A.F. 2016) (finding the government’s use of generally
prohibited “human lie detector testimony” in rebuttal was justified after trial defense
counsel elicited the same type of evidence on cross-examination); United States v.
Bresnahan, 62 M.J. 137, 146 (C.A.A.F. 2005) (explaining that generally
impermissible “profile characteristics” as evidence of guilt or innocence may be
admitted “in rebuttal when a party ‘opens the door’ by presenting potentially
misleading testimony”); United States v. Swift, 53 M.J. 439, 450 (C.A.A.F. 1999)
(noting “that when an accused has opened the door to consideration of an unwarned
statement[,]” the statement may be admitted into evidence notwithstanding the
limitations of Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(b)).

        Appellant argues that the Mil. R. Evid. 304 requirement that he file his motion
prior to pleas was what forced him to include evidence that would have been barred
at trial and, therefore, it would be “fundamentally unfair” to allow the government to
claim that he opened the door. This argument ignores the fact that appellant made a
tactical decision; he attached the transcript of his prior testimony from Jackson II.
By itself, this would have shifted the burden to the government to prove the
confession was voluntary. Instead, appellant chose to corroborate his testimony with
SA SK’s worksheet.

       When appellant included SA SK’s polygraph worksheet to corroborate that
appellant was in pain, tired, and on medication, the government was able to include
prior testimony where SA SK explained the polygraph worksheet. The included
testimony expounded on SA SK’s discussion with appellant regarding how much
sleep he had, medications he was on, and how much pain he was in. The testimony
went into details that also described his demeanor, ability to fill in blanks, and
answer questions on his statement.

       Beyond analyzing whether the military judge could consider SA SK’s prior
testimony, we must also decide if the military judge abused her discretion by finding
that the confession was voluntary.



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JACKSON—ARMY 20120159


        A confession is involuntary “if it was obtained ‘in violation of the self-
incrimination privilege or due process clause of the Fifth Amendment to the
Constitution of the United States, Article 31, or through the use of coercion,
unlawful influence, or unlawful inducement.’” United States v. Freeman, 65 M.J.
451, 453 (C.A.A.F. 2008) (quoting Mil. R. Evid. 304(a), (c)(3)). “We examine ‘the
totality of the surrounding circumstances’ to determine ‘whether the confession is
the product of an essentially free and unconstrained choice by its maker.’” Id.
(citing United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996)).

       In Freeman, the CAAF gives examples of the type of factors that should be
considered in the military judge’s decision, to include: age, education, intelligence
of the accused; whether there was lack of any advice to the accused of his
constitutional rights; the length of detention; the repeated and prolonged nature of
the questioning; and the use of physical punishment such as the deprivation of food
or sleep. Id.

       The military judge’s findings of fact are squarely in line with precedent; she
made specific findings on age, intelligence, the rights warning, length of the
interrogation, and the fact appellant was in pain. Looking at the totality of the
circumstances, her findings and conclusions as to whether appellant’s statement was
made voluntarily are not clearly erroneous. She did not abuse her discretion in
finding that appellant made his statement voluntarily and denying the motion to
suppress.

                         B. Corroboration of the Confession

      Appellant also asserts the military judge erred in admitting his entire
statement as each essential fact was not corroborated. We review a military judge’s
admission of evidence for an abuse of discretion. United States v. McCollum, 58
M.J. 323, 335 (C.A.A.F. 2003) (citing United States v. McElhaney, 54 M.J. 120, 132
(C.A.A.F. 2000)).

       To determine if a military judge can admit a confession, the essential facts
must be independently corroborated. United States v. Adams, 74 M.J. 137, 140
(C.A.A.F. 2015); Mil. R. Evid. 304(c). There does not need to be “‘independent
evidence of all the elements of an offense or even the corpus delicti of the confessed
offense. Rather, the corroborating evidence must raise only an inference of truth as
to the essential facts admitted.’” Id. (quoting United States v. Cottrill, 45 M.J. 485,
489 (C.A.A.F. 1997)). “[N]o mathematical formula exists to measure sufficient
corroboration . . . .” United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).
However, the “inference [of truthfulness] may be drawn from a quantum of
corroborating evidence that [our superior court] has described as ‘very slight.’”
United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005) (quoting Melvin, 26 M.J.



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JACKSON—ARMY 20120159

at 146). “What constitutes an essential fact of an admission or confession
necessarily varies by case.” Adams, 74 M.J. at 140. The type of essential facts that
our superior court has “previously considered include the time, place, persons
involved, access, opportunity, method, and motive of the crime.” Id.

       At trial, the government moved to introduce appellant’s 19 January 2011
statement to CID. Defense counsel objected on the basis that the essential facts
were not corroborated. The military judge applied the reasoning set forth in Adams
and Cottrill, and gleaned from those cases that the essential facts she had to
corroborate in appellant’s case were: time, place, persons involved, access,
opportunity, method, and manner. See Adams, 74 M.J. at 140; Cottrill, 45 M.J.
at 489. The military judge described where she found corroboration for these facts,
including inferences she made based on the testimony of AS, the photo, and the
medical records. Her conclusion was factually and legally sound and we find no
error.

                                  CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Senior Judge BURTON and Judge CELTNIEKS concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




                                           MALCOLM H. SQUIRES, JR.
                                           MALCOLM H. SQUIRES, JR.
                                           Clerk of
                                           Clerk of Court
                                                    Court




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