                       UNITED STATES, Appellee

                                    v.

                       Paul R. JASPER, Sergeant
                         U.S. Army, Appellant

                             No. 13-0013/AR

                       Crim. App. No. 20100112

       United States Court of Appeals for the Armed Forces

                        Argued April 15, 2013

                         Decided June 4, 2013

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined.


                                 Counsel

For Appellant: Major Jacob D. Bashore (argued); Colonel
Patricia A. Ham and Lieutenant Colonel Jonathan F. Potter (on
brief); Lieutenant Colonel Imogene M. Jamison.

For Appellee: Captain T. Campbell Warner (argued); Lieutenant
Colonel Amber J. Roach and Major Daniel D. Maurer (on brief);
Major Catherine L. Brantley.

Military Judge:   James Pohl

       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jasper, 13-0013/AR


      Judge RYAN delivered the opinion of the Court.

      Contrary to his pleas, a panel of officers and enlisted

members sitting as a general court-martial convicted Appellant

of one specification of indecent conduct, in violation of

Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 920 (2006), as well as two specifications of committing an

indecent act with a child, and one specification each of

knowingly possessing child pornography, knowingly receiving

child pornography, persuasion and enticement of sexually

explicit conduct for the purpose of producing visual depictions,

and obstruction of justice, all in violation of Article 134,

UCMJ, 10 U.S.C. § 934 (2006).   The adjudged sentence provided

for twenty-three years of confinement, a dishonorable discharge,

forfeiture of all pay and allowances, and reduction to grade E-

1.   The convening authority approved only so much of the

sentence that provided for eighteen years of confinement, a

dishonorable discharge, forfeiture of all pay and allowances,

and reduction to grade E-1.

      The United States Army Court of Criminal Appeals (ACCA)

affirmed the findings and sentence as approved by the convening

authority.   United States v. Jasper, No. ARMY 20100112, slip op.

at 6 (A. Ct. Crim. App. July 13, 2012).    We granted Appellant’s

petition to review the following issues:

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United States v. Jasper, 13-0013/AR


 I.     WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE
        ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY
        WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER
        ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST
        APPELLANT.
 II.    WHETHER THE ARMY COURT ERRED WHEN IT CREATED A
        CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF
        EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE
        INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE
        DISCLOSURE TO BE DEEMED VOLUNTARY.
 III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL
      ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE
      SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN
      MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO
      NOTICE.
 IV.    WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL
        MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF
        POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE
        134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER
        THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN
        AS THE UCMJ DEFINES CHILD.
United States v. Jasper, 72 M.J. 83 (C.A.A.F. 2013) (order

granting review).	

       We hold that the military judge erred in ruling that the

clergy privilege protecting statements that the putative child

victim made to her pastor under Military Rule of Evidence

(M.R.E.) 503 remained intact when both she and her mother

affirmatively granted that pastor permission to disclose their

communications to trial counsel, and he did disclose them.

Waiver under M.R.E. 510(a) does not require that the privilege

holder have knowledge that the waived statements would otherwise

be privileged, or of how the waived statements will be used.

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United States v. Jasper, 13-0013/AR


This error, which suppressed critical impeachment evidence --

the putative child victim’s statement concerning her sexual

abuse allegations against Appellant that “she had made it all

up . . . to get attention,” -- materially prejudiced Appellant’s

ability to defend himself against each of the specifications of

which he was convicted.   See United States v. Collier, 67 M.J.

347, 355-57 (C.A.A.F. 2009); Article 59(a), UCMJ, 10 U.S.C.

§ 859(a) (2006).    Consequently, we reverse the ACCA’s decision

and set aside the findings and sentence without reaching the

remaining issues.

                              I.   FACTS

     Appellant’s convictions are all related to alleged sexual

conduct between Appellant and his stepdaughter, BK, occurring

between 2006 and 2007, and in 2009.    Prior to trial, pursuant to

Rule for Courts-Martial (R.C.M.) 701(a)(6), trial counsel

disclosed to the defense that the Government had learned that,

in 2007, BK had told her pastor that she had made up the earlier

allegations against Appellant to get attention.

     Defense counsel moved to compel production of Pastor Ron

Ellyson, who had provided spiritual counseling to BK.   At the

motion hearing, defense counsel conceded that the clergy

privilege, M.R.E. 503, applied to BK’s conversations with Pastor

Ellyson, and agreed that the issue was whether BK and her

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United States v. Jasper, 13-0013/AR


mother, AJ, had waived the privilege under M.R.E. 510(a) when

they gave Pastor Ellyson permission to disclose the

communications to trial counsel.

     At the motion hearing, Pastor Ellyson testified that trial

counsel had contacted him to discuss obtaining consent from BK

and AJ to disclose the communications he had with BK.    After

contacting his attorney, Pastor Ellyson called AJ and asked for

her permission to disclose the communications, but did not

explain that the communications were protected under the clergy

privilege or inform her of the possible ramifications of

disclosure.

     AJ gave Pastor Ellyson permission to disclose the

communications he had with BK.   Although BK was not present when

AJ spoke with Pastor Ellyson, BK later left Pastor Ellyson a

voice message in which she also gave him permission to disclose

their communications.   While Pastor Ellyson testified that he

did not tell AJ who would hear the information, both AJ and BK

testified that they understood that the disclosure was to be

made only to trial counsel.

     After receiving permission to disclose the communications

from AJ and BK, Pastor Ellyson spoke with trial counsel and

disclosed that BK had told him that “she had made it all up at

that time to get attention.”   Trial counsel subsequently

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United States v. Jasper, 13-0013/AR


provided this favorable information to the defense and visited

both AJ and BK to inform them that BK’s communications were

protected by the clergy privilege and that they could assert the

privilege to prevent disclosure of BK’s communications to Pastor

Ellyson.

       At the motion hearing, AJ and BK sought to assert their

privilege to prevent Pastor Ellyson from disclosing the

communications he had already disclosed to trial counsel with

their permission.   After hearing AJ and BK’s testimony as to the

circumstances under which they had given Pastor Ellyson

permission to disclose the communications to trial counsel, the

military judge ruled that there had been no waiver and denied

Appellant’s motion to produce Pastor Ellyson because “any

testimony that [he] would have would be inadmissible.”

       At trial, the Government principally relied on AJ and BK’s

testimony to prove that Appellant had committed the charged

offenses.   See infra Part III.C.       Moreover, despite his

knowledge of BK’s exculpatory statement to Pastor Ellyson, trial

counsel argued in closing that BK was credible, stating that

“you can’t make [BK’s testimony] up,” “the kinds of details

[that BK recalled] that if you’re making something up, just

don’t come out,” and “[i]t went down just the way she explained

it.”

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United States v. Jasper, 13-0013/AR


                         II.   ACCA DECISION

     As relevant to our decision, Appellant argued before the

ACCA that the military judge erred in ruling that the clergy

privilege protected BK’s statements to Pastor Ellyson from

disclosure because the privilege had been waived when AJ and BK

granted Pastor Ellyson permission to disclose the

communications.   In affirming the findings and sentence, the

ACCA held that the military judge did not abuse his discretion

in ruling that neither BK nor AJ had waived the privilege under

M.R.E. 510(a).    Jasper, No. ARMY 20100112, slip op. at 4, 6.

The ACCA relied on the fact that “no one informed AJ nor BK that

they had a right to maintain the confidentiality of BK’s

communications with Pastor Ellyson in the court-martial

process,” and that “AJ and BK both believed that the disclosure

was limited to the trial counsel.”    Id. at 4.   In light of these

facts, the ACCA held that the circumstances “[did] not

demonstrate a knowing intent to make the information public,”

and “[n]either AJ nor BK voluntarily consented ‘to disclosure of

any significant part of the matter or communication under such

circumstances that it would be inappropriate to allow the claim

of privilege.’”   Id. (quoting M.R.E. 510(a)).




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United States v. Jasper, 13-0013/AR


                           III.   DISCUSSION

        A military judge’s decision to admit or exclude evidence is

reviewed for an abuse of discretion.     United States v.

McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000).     “To find an abuse

of discretion requires more than a mere difference of opinion --

the challenged ruling must be arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.”     Id. (internal quotation

marks and citation omitted).

        The parties agree that, as an initial matter, the clergy

privilege, M.R.E. 503, applied to BK’s communications with

Pastor Ellyson.    The sole question before us, then, is whether

the privilege was waived under M.R.E. 510(a).    If the privilege

was waived, the military judge abused his discretion in denying

Appellant’s motion to produce Pastor Ellyson and excluding BK’s

statements to him.    See United States v. McCollum, 58 M.J. 323,

327 (C.A.A.F. 2003).

        Contrary to the ACCA’s holding, where, as here, the

privilege holder, in the absence of factors like coercion or

trickery, affirmatively consents to the disclosure of the

privileged communication to a third party, the privilege is

waived, regardless of whether the privilege holder was aware

that:    (1) the communication was privileged, or (2) consenting

to the disclosure of the communication waived the privilege.

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United States v. Jasper, 13-0013/AR


Here, the military judge erred in denying Appellant’s motion to

produce Pastor Ellyson and excluding BK’s statements to him as

privileged, and that error was not harmless beyond a reasonable

doubt.

                                A.

      M.R.E. 503(a) provides that:

      A person has a privilege to refuse to disclose and to
      prevent another from disclosing a confidential
      communication by the person to a clergyman . . . if
      such communication is made either as a formal act of
      religion or as a matter of conscience.
      The clergy privilege may be claimed by the person, the

person’s guardian, or the clergyman on behalf of the person.

M.R.E. 503(c).   Under M.R.E. 510(a), a privilege is waived “if

the person . . . voluntarily discloses or consents to disclosure

of any significant part of the matter or communication under

such circumstances that it would be inappropriate to allow the

claim of privilege.”   Here, there is no question that both BK

and her guardian, AJ, affirmatively consented to Pastor

Ellyson’s disclosure of the statements to trial counsel.   Under

such circumstances, and for the reasons below, we think that “it

would be inappropriate to allow the claim of privilege” to

prevent defense counsel from using BK’s statements at trial.

Id.




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United States v. Jasper, 13-0013/AR


     “Testimonial exclusionary rules and privileges contravene

the fundamental principle that the public . . . has a right to

every man’s evidence.”   Trammel v. United States, 445 U.S. 40,

50 (1980) (internal quotation marks and citation omitted).

Because privileges “run contrary to a court’s truth-seeking

function,” they are narrowly construed.   United States v.

Custis, 65 M.J. 366, 369 (C.A.A.F. 2007).   While “determining

waiver of a privilege is an ‘evaluation [that] demands a

fastidious sifting of the facts and a careful weighing of the

circumstances,’” id. at 371 n.9 (quoting In re Keeper of the

Records (XYZ Corp.), 348 F.3d 16, 23 (1st Cir. 2003)), waiver

has never turned on anything more than the requirement set forth

in M.R.E. 510(a) that the privilege holder “voluntarily

discloses or consents to disclosure of any significant part of

the matter or communication.”   See M.R.E. 510(a).

     This Court has not previously considered waiver under

M.R.E. 510(a) in the clergy privilege context.   However, in the

marital privilege context, we have never conditioned waiver on

the privilege holder’s awareness of the privilege.   See

McElhaney, 54 M.J. at 132 (holding that elliptical references to

the content of a marital communication voluntarily made to a

third party was sufficient to waive privilege); McCollum, 58

M.J. at 339 (“[V]oluntary consent to disclose is given where one

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United States v. Jasper, 13-0013/AR


spouse either expressly or implicitly authorizes the other to

share information with a third party.”).

     Moreover, courts have found waiver on nothing more than the

privilege holder’s failure to take adequate precautions to

maintain confidentiality, see United States v. Hamilton, 701

F.3d 404 (4th Cir. 2012) (finding waiver where the defendant put

confidential communications in work e-mail), and have expressly

disavowed the notion that, for a waiver to be valid, the

privilege holder must intend to waive the privilege -- instead,

whether a waiver is valid turns on whether the disclosure was

voluntary.   See Champion Int’l. Corp. v. Int’l. Paper Co., 486

F. Supp. 1328, 1332 (N.D. Ga. 1980) (“‘[V]oluntary disclosure,

regardless of knowledge of the existence of the privilege,

deprives a subsequent claim of privilege based on

confidentiality of any significance.’” (citation omitted));

State v. Patterson, 294 P.3d 662, 667 (Utah Ct. App. 2013)

(stating that “it is not necessary . . . to show that a

[privilege holder] intended to waive the privilege but only that

she intended to make the disclosure” (quotation marks and

citation omitted)); State v. Gray, 891 So. 2d 1260 (La. 2005)

(affirming trial court’s ruling that clergy privilege was

waived); see also 1 Charles T. McCormick, McCormick on Evidence

§ 93 (7th ed. 2013) (“Finding waiver in situations in which

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United States v. Jasper, 13-0013/AR


forfeiture of the privilege was not subjectively intended by the

holder is consistent with the view, expressed by some cases and

authorities, that the essential function of the privilege is to

protect a confidence that, once revealed by any means, leaves

the privilege with no legitimate function to perform.”).

     Finally, unlike the “high standards of proof for the waiver

of constitutional rights,” Miranda v. Arizona, 384 U.S. 436, 475

(1966), M.R.E. 510(a) does not require that a waiver of

privilege be made “knowingly” or “intelligently,” see M.R.E.

510(a).    Cf. M.R.E. 305(g) (waiver of right to counsel “must be

made freely, knowingly, and intelligently”); Schneckloth v.

Bustamonte, 412 U.S. 218, 234, 237 (1973) (holding that

“knowledge of a right to refuse [consent] is not a prerequisite

of a voluntary consent” and noting that “[a]lmost without

exception, the requirement of a knowing and intelligent waiver

has been applied only to those rights which the Constitution

guarantees to a criminal defendant in order to preserve a fair

trial”).

     The Government nonetheless insists that the present

circumstance is not one where it would be “inappropriate to

allow the claim of privilege” under M.R.E. 510(a) because AJ and

BK were unaware of the privilege when they granted Pastor

Ellyson permission to disclose BK’s statements.   The effect of

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United States v. Jasper, 13-0013/AR


this argument, however, is to require a “knowing” and

“intelligent” waiver where no such language appears in M.R.E.

510(a).   And where, as here, a privilege holder voluntarily

consents to the disclosure of privileged statements to trial

counsel without express limitation, we think it would be

inappropriate to allow a claim of privilege to prevent Appellant

from using those statements at trial.   Cf. R.C.M. 701(a)(6);

Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process”).

                                B.

     Given that the military judge’s ruling was an abuse of

discretion, the question remains whether the error implicated

Appellant’s constitutional rights.    See Collier, 67 M.J. at 352.

While “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits

on . . . cross-examination,” Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986), an accused’s Confrontation Clause rights are

violated when “‘[a] reasonable jury might have received a

significantly different impression of [the witness’s]

credibility had [defense counsel] been permitted to pursue his

proposed line of cross-examination,’” Collier, 67 M.J. at 352

(quoting Van Arsdall, 475 U.S. at 680).    “Whether sufficient

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United States v. Jasper, 13-0013/AR


cross-examination has been permitted depends on whether the

witness’s motivation for testifying has already been exposed and

‘further inquiry . . . would [be] marginally relevant at best

and potentially misleading.’”   Id. (quoting United States v.

Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007)).

     There is little question that in cases such as these, the

credibility of the putative victim is of paramount importance,

and that a statement by that person that she had made up some or

all of the allegations to get attention might cause members to

have a significantly different view of her credibility.

     Here, the military judge’s ruling prevented Appellant from

using BK’s statements to impeach her credibility through cross-

examination or otherwise.   U.S. Const. amend. VI (right “to be

confronted with the witnesses against him”).   In addition, the

military judge’s error prevented Appellant from presenting BK’s

statements to the panel through Pastor Ellyson’s direct

testimony, “depriv[ing] [him] of ‘relevant and material,

and . . . vital’ testimony and evidence,” United States v.

McAllister, 64 M.J. 248, 252 (C.A.A.F. 2007) (quoting Washington

v. Texas, 388 U.S. 14, 16 (1967)), and limiting his ability to

prove his theory of the case.   U.S. Const. amend. V (right to

“due process of law”); U.S. Const. amend. VI (right “to have

compulsory process for obtaining witnesses in his favor”); see

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United States v. Jasper, 13-0013/AR


Washington, 388 U.S. at 16-19; McAllister, 64 M.J. at 252.

     Given that:    (1) BK’s testimony was critical to the

Government’s case; (2) the erroneous exclusion of BK’s

exculpatory statements prevented Appellant from “expos[ing] the

alleged nefarious motivation behind [her] allegations and

testimony,” see Collier, 67 M.J. at 352; and (3) Appellant’s

theory of the case was that both his wife, AJ, and his

stepdaughter, BK, were lying, the military judge’s erroneous

ruling violated Appellant’s rights to confrontation and due

process.    See Van Arsdall, 475 U.S. at 680; Washington, 388 U.S.

at 19.

                                  C.

     “Having found constitutional error, the question remains

whether that error was harmless beyond a reasonable doubt.”

Collier, 67 M.J. at 355 (citing Chapman v. California, 386 U.S.

18, 24 (1967)).    “Whether a constitutional error was harmless

beyond a reasonable doubt is a question of law reviewed de

novo.”     United States v. Tearman, 72 M.J. 54, 62 (C.A.A.F.

2013).   Where the error improperly limits an accused’s

opportunity to present exculpatory evidence through direct

testimony and cross-examination, “[t]he burden is on the

Government to show that there is no reasonable possibility that




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United States v. Jasper, 13-0013/AR


the error contributed to the contested findings of guilty.”

Collier, 67 M.J. at 355 (quotation marks and citation omitted).

     “To find that the error here warrants relief, we need not

conclude that Appellant’s defense would have succeeded.     Instead

the inquiry should focus on whether the military judge’s ruling

‘essentially deprived Appellant of [her] best defense’ that ‘may

have tipped the credibility balance in Appellant’s favor.’”    Id.

at 356 (quoting United States v. Moss, 63 M.J. 233, 239

(C.A.A.F. 2006)).   Where the error violates the accused’s right

“to be confronted with the witnesses against him,” U.S. Const.

amend. VI, we apply the balancing test articulated by the

Supreme Court in Van Arsdall, and weigh:

     the importance of the witness’ testimony in the
     prosecution’s case, whether the testimony was
     cumulative, the presence or absence of evidence
     corroborating or contradicting the testimony of the
     witness on material points, the extent of cross-
     examination otherwise permitted, and, of course, the
     overall strength of the prosecution’s case.

475 U.S. at 684.

     The Government’s case and Appellant’s defense strategy

hinged on BK’s credibility.   BK’s testimony and, as a corollary,

her credibility were critical to the Government’s case with

regard to the indecent conduct specification and the indecent

acts specifications as there was no other witness that testified




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United States v. Jasper, 13-0013/AR


to seeing the conduct, and no physical evidence supporting her

testimony.

     Moreover, the Government principally relied on both AJ and

BK’s testimony to prove the remaining specifications.   BK

testified that, on Wednesday, August 19, 2009, Appellant texted

her sixty-two times, and asked her to send him nude pictures of

herself.   Using the mirror in her bedroom and her cell phone, BK

testified that she took the pictures and sent them to Appellant.

     BK next testified that, two days later, Appellant signed

her out of school at 1:00 p.m., brought her home, and began to

engage in sexual activity with her.   BK recalled the details of

the sexual activity -- what was done and said -- and stated that

it had lasted for about twenty minutes.   After the sexual

activity ended, BK testified that Appellant photographed her

nude body in a variety of poses.

     While BK did not testify directly that Appellant deleted

the photos from his phone, BK’s testimony that Appellant had

taken nude photos of her on his cell phone and AJ’s testimony

that she had seen the photos were offered to prove the necessary

factual condition precedent for convicting Appellant of

destroying incriminating evidence by deleting the purported




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United States v. Jasper, 13-0013/AR


photos from his cell phone.1   Given that Appellant’s defense was

that both BK and AJ were lying, and given that no one other than

AJ testified to seeing the photos that BK said were taken, and

AJ claimed were deleted, we cannot say that BK’s testimony was

not important to the Government’s proof of the obstruction of

justice specification.

     Appellant was otherwise permitted to cross-examine BK and

other Government witnesses to expose inconsistencies in their

testimony and in the Government’s case, and did so.

Nevertheless, we find dispositive the fact that, aside from the

circumstantial evidence that it presented, the Government’s case

rested on both AJ and BK’s testimony.   See United States v.

Savala, 70 M.J. 70, 78 (C.A.A.F. 2011) (finding that “[t]he

strength of the Government’s circumstantial case . . . d[id] not

overcome” the consideration that “credibility was a critical

issue in the case”); Collier, 67 M.J. at 356 (“Because [the

witness] was one of only two witnesses on the influencing

testimony charge, any additional damage to [her] credibility

could have been very significant to the outcome of the case.”).

While the Government introduced some evidence corroborating some


1
  The obstruction of justice specification alleges that Appellant
“wrongfully endeavor[ed] to impede an investigation . . . by
deleting indecent digital photographic images of his
stepdaughter . . . from his cellular telephone.”
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United States v. Jasper, 13-0013/AR


details of AJ and BK’s testimony,2 BK was a critical witness to

each charged offense.

     In turn, Appellant’s defense was that BK and AJ were lying.

In support of his theory, Appellant called an employee of a

tattoo shop who testified that he did not see “anything out of

the ordinary” when BK and Appellant visited the shop only hours

after the alleged sexual activity and nude photographing had

occurred.   Appellant also highlighted the important evidence

missing from the Government’s case, including (1) the SIM card

from BK’s cell phone, which had been ruined after being

accidentally dropped in the toilet before Criminal Investigation

Division (CID) collected the phone approximately one month after

the alleged incident had been reported; and (2) any forensic

evidence that could have been found either on BK’s clothing or

the pillows that BK had laid on with Appellant during the sexual

2
  AJ testified that, on August 22, 2009, she discovered multiple
nude pictures of BK in Appellant’s cell phone. She described
the different poses in which BK had been photographed and
recounted that Appellant had chased her outside the house,
grabbed the cell phone, and locked himself in a bedroom while he
deleted the photographs. This testimony was partly corroborated
by: (1) the transcript of AJ’s 911 call, which she made
immediately after finding the photographs; (2) the testimony of
TJ -- AJ and Appellant’s daughter, and BK’s half-sister -- who
witnessed the altercation, but did not see the photographs in
Appellant’s cell phone or Appellant deleting them; and (3) a
text message that Appellant sent to AJ the day after the alleged
altercation, which stated: “I no [sic], but when this mess is
over it will all be different, is it fair 2 pay the rest of my
life cuz [sic] I made a mistake, I’m only human.”
                                19
United States v. Jasper, 13-0013/AR


assault that had allegedly occurred prior to Appellant’s alleged

nude photographing of BK.

     The military judge’s erroneous ruling prevented defense

counsel from introducing evidence that BK had stated in 2007

that she had made up those earlier allegations, which directly

supported Appellant’s theory of the case.   While the

Government’s case was not weak, it hinged on BK’s credibility.

The military judge’s ruling prevented Appellant from using a

critical piece of exculpatory evidence to impeach BK’s

testimony, which, in turn, could have necessarily impeached AJ’s

testimony and affected the panel’s findings as to each of the

remaining specifications.    This possibility compels the

conclusion that defense counsel’s use of BK’s exculpatory

statement “‘may have tipped the credibility balance in

Appellant’s favor,’” Collier, 67 M.J. at 357 (quoting Moss, 63

M.J. at 239), and its erroneous prohibition was not “unimportant

in relation to everything else the jury considered,” Id.

(citation omitted).   See Savala, 70 M.J. at 78 (finding

prejudice where “the ruling by the military judge enabled the

prosecution to enhance the credibility of its version while

handcuffing the defense”).

     Furthermore, despite knowing of BK’s statement that she had

made the allegations up, “[a]dding insult to injury, the

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United States v. Jasper, 13-0013/AR


Government exploited [the military judge’s erroneous]

evidentiary limitation . . . in closing argument,” Collier, 67

M.J. at 357, arguing that “you can’t make [BK’s testimony] up,”

“the kinds of details [that BK recalled] that if you’re making

something up, just don’t come out,” and “[i]t went down just the

way she explained it.”   These comments compounded the harm that

the military judge’s error created.

     On these facts, the Government has not carried its burden

to show that the deprivation of key evidence directly related to

the credibility and motivation of its primary witness was

harmless beyond a reasonable doubt.

                           IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed, and the findings and sentence are set

aside.   The record is returned to the Judge Advocate General of

the Army.   A rehearing is authorized.




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