

   
   
   
   U.S. v. McElhaney



IN THE CASE OF
UNITED STATES, Appellee
v.
Michael R. MCELHANEY, Staff Sergeant
U.S. Air Force, Appellant
 
No. 99-0940
Crim. App. No. 32522
 
United States Court of Appeals for the Armed
Forces
Argued April 5, 2000
Decided September 14, 2000
EFFRON, J., delivered the opinion of the
Court, in which GIERKE, J., and COX, S.J., joined. CRAWFORD, C.J., and
SULLIVAN, J., each filed an opinion concurring in part and dissenting in
part.
Counsel
For Appellant: Major Stephen P. Kelly
(argued); Colonel Jeanne M. Rueth (on brief); Lieutenant Colonel
James R. Wise.
For Appellee: Captain James C. Fraser
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief).
Military Judge: J.J. Powers
 
 


This opinion is subject
to editorial correction before publication.



Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, contrary to his pleas, of an attempt to commit
rape, an attempt to commit carnal knowledge with a child under 16 years
of age, carnal knowledge with a child under 12 years of age, carnal knowledge
with a child under 16 years of age, sodomy with a child under 16 years
of age, and four specifications of indecent acts with a child under 16
years of age, in violation of Articles 80, 120, 125, and 134, Uniform Code
of Military Justice, 10 USC §§ 880, 920, 925, and 934, respectively.
He was sentenced to a dishonorable discharge, confinement for 20 years,
and reduction to the lowest enlisted grade. The convening authority approved
the findings and that portion of the sentence providing for a dishonorable
discharge, confinement for 15 years, and reduction to the lowest enlisted
grade. The Court of Criminal Appeals affirmed the findings and sentence.
50 MJ 819 (1999).
On appellants petition, we granted review
of the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT THE STATUTE OF LIMITATIONS APPLICABLE TO
TRIALS IN FEDERAL COURTS FOR OFFENSES INVOLVING THE SEXUAL OR PHYSICAL
ABUSE OF A CHILD (18 USC § 3283) APPLIES TO TRIAL BY COURT-MARTIAL
IN LIEU OF ARTICLE 43, UCMJ.
II. WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE MOTIONS TO COMPEL THE PRODUCTION OF MR. JUANITO PEREZ, SA ERNEST
O. JOY, JR., AND MR. THOMAS RICHTER AS WITNESSES.
III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR IN LIMITING THE CROSS-EXAMINATION OF THE VICTIM.
IV. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT APPELLANT WAIVED HIS PRIVILEGE UNDER RCM
504(b) CONCERNING COMMUNICATIONS MADE TO HIS WIFE.
V. WHETHER DR. MORALES, AN EXPERT FOR THE PROSECUTION,
IMPROPERLY COMMENTED ON THE "FUTURE DANGEROUSNESS" OF APPELLANT WHEN HE
DID NOT HAVE AN ADEQUATE BASIS TO FORM AN OPINION ON THE SUBJECT.

We hold that the lower court erred in applying
the statute of limitations in 18 USC § 3283 in lieu of the statute
of limitations codified in Article 43, UCMJ, 10 USC § 843. We affirm
the lower courts decisions on Issues II, III, and IV. Our disposition
of Issue I, which will result in further proceedings on the sentence, makes
it unnecessary to determine whether there was any prejudicial error under
Issue V.

I. STATUTE OF LIMITATIONS
A. Background
The charges against appellant arose from his
sexual relationship with his wifes niece, VR. Appellants wife was VRs
guardian in the Philippines, and the child lived with the couple for more
than a year when she was about 8 years old. This arrangement ended when
appellant was transferred back to the United States in August 1988. Appellant
continued the relationship with VR after the move by corresponding with
her and visiting her several times over the years. The nature of the relationship
between appellant and VR was discovered by appellants wife when she read
some of the correspondence in 1994.
Appellant was charged with 11 offenses stemming
from acts committed during the 7-year affair.1
The charges were received by the summary court-martial convening authority
on February 2, 1996. Three of the offenses -- rape, one specification of
sodomy, and one specification of indecent acts -- were alleged to have
been committed between August 1, 1987, and August 31, 1988. At trial, appellant
moved to dismiss these charges as barred by the 5-year statute of limitations
in Article 43(b)(1). The Government argued that the longer statute of limitations
in 18 USC § 3283, which permits the prosecution of offenses involving
the sexual and physical abuse of children until the victim reaches age
25, had superceded the 5-year limitation in Article 43(b)(1). The military
judge agreed, ruling that 18 USC § 3283 applies to courts-martial
and that it was applicable to the charges and specifications in appellants
case. The judge also ruled that because rape is a crime punishable by death
under the UCMJ, it was not subject to any time limitations on punishment
under Article 43(a).
On appeal, the Government conceded at the court
below that the military judge erred by applying 18 USC § 3283 to the
charges against appellant. The lower court rejected the concession and
affirmed appellants convictions.2
50 MJ at 822. The court held that the statute of limitations found in 18
USC § 3283 applies to courts-martial involving physical or sexual
abuse of a child, resting its decision on "the unambiguous language in
the [Victims of Child Abuse Act] VCAA; the legislative history; the implementation
of the VCAA by the Department of Defense; and the previous judicial application
of the VCAA to members of the armed forces." Id. at 826.

B. Consideration of Generally Applicable Statutes
in the Military Justice System
The Constitution grants Congress "plenary control
over rights, duties, and responsibilities in the framework of the Military
Establishment, including regulations, procedures, and
remedies related to military discipline."
Weiss
v. United States, 510 U.S. 163, 177, 114 S.Ct. 752, 760, 127 L.Ed.2d
1 (1994); see U.S. Const. art. I, § 8, cl.14. Congress has
exercised its control over military discipline through the Uniform Code
of Military Justice, which "establishes an integrated system of investigation,
trial, and appeal that is separate from the criminal justice proceedings
conducted in the U.S. district courts." United States v. Dowty,
48 MJ 102, 106 (1998).
Although there are many similarities between
civilian criminal proceedings and our own, and although we frequently look
to civilian statutes for guidance, the military and civilian justice systems
are separate as a matter of law. See id. Amendments to Title
18 of the U.S. Code (the Federal Criminal Code), changes to the Federal
Rules of Criminal Procedure, and changes to the Federal Rules of Evidence
"do not directly affect proceedings under the Uniform Code of Military
Justice except to the extent that the Code or the Manual for Courts-Martial
specifically provides for incorporation of such changes." Id.; see,
e.g.,
Arts. 36 and 134 (clause 3), UCMJ, 10 USC §§ 836 and 934; Mil.R.Evid.
101(b)(1), Manual for Courts-Martial, United States (1998 ed.).
Congressional intent to separate military justice
from the federal criminal system, evidenced by our distinct and comprehensive
criminal code, requires us to "exercise great caution in overlaying a generally
applicable statute specifically onto the military system." Dowty,
48 MJ at 111. Employing that cautious approach in Dowty, we decided
that it was necessary to apply the integral, procedural aspects of the
Right to Financial Privacy Act because the tolling provision at issue was
directly tied to the beneficial provisions of that statute, which had already
been implemented by the Department of Defense and judicially applied to
servicemembers.
Dowtys status as an exception which
proves the rule of separateness is underscored not only by the limiting
language of that opinion, but also by our decision in United States
v. Spann, 51 MJ 89 (1999). In Spann, we declined to apply §
502 of the Victims Rights and Restitution Act of 1990, 42 USC § 10606
to courts-martial (expressing a preference for a victims presence in the
courtroom at trial). We observed that the essentially civilian nature of
the federal statute was in conflict with Mil.R.Evid. 615, and we added
that the President had not amended the rule to address whether, or how,
the civilian procedures should apply in military proceedings under Article
36 of the UCMJ. We emphasized that Congress intended the deliberative process
of amending the Manual for Courts-Martial to prevail over "uncritical application
of statutes outside the UCMJ." 51 MJ at 93.

C. Discussion
Issue I raises the question of whether the
statute of limitations in the Victims of Child Abuse Act, currently codified
at 18 USC § 3283, supercedes Article 43, the statute Congress enacted
specifically for the military justice system. As a question of law, this
issue is subject to de novo review. 1 Steven Childress &
Martha Davis, Federal Standards of Review § 2.13 (3d ed. 1999).
Subject to exceptions not at issue in this
case, Article 43(b)(1) provides that:



[A] person charged with an offense is not
liable to be tried by court-martial if the offense was committed more than
five years before the receipt of sworn charges and specifications by an
officer exercising summary court-martial jurisdiction over the command.



This provision was last amended in 1986, when
the limitation period was increased from 2 to 5 years. National Defense
Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, § 805(a),
100 Stat. 3816, 3908 (1986).
The other statute of limitations at issue in
the present case, 18 USC § 3283, was originally enacted as part of
the Crime Control Act of 1990, Pub.L.No. 101-647, 104 Stat. 4789. The Act
was a lengthy compilation of diverse provisions, ranging from Title I ("International
Money Laundering") to Title XXXVII ("National Child Search Assistance Act
of 1990"). Title II, the "Victims of Child Abuse Act of 1990" (VCAA), addressed
a wide variety of problems related to the physical and sexual abuse of
children, as reflected in the six subtitles of the Act: Subtitle A, "Improving
Investigation and Prosecution of Child Abuse Cases"; Subtitle B, "Court-Appointed
Special Advocate Program"; Subtitle C, "Child Abuse Training Programs for
Judicial Personnel and Practitioners"; Subtitle D, "Federal Victims Protections
and Rights"; Subtitle E, "Child Care Worker Employee Background Checks";
and Subtitle F, "Grants for Televised Testimony."
In addition to the various funding mechanisms
and specialized programs established by the VCAA, Subtitle D created rights
for victims of child abuse, as detailed in § 225 of the Act. Section
225 contained ten substantive parts, codified at 18 USC § 3509, setting
forth special procedures and protections for children who are victims of
child abuse and who participate as witnesses in prosecutions: § 3509(b),
"Alternatives to Live In-Court Testimony"; § 3509(c), "Competency
Examinations"; § 3509(d), "Privacy Protection"; § 3509(e), "Closing
the Courtroom"; § 3509(f), "Victim Impact Statement"; § 3509(g),
"Use of Multidisciplinary Child Abuse Teams"; § 3509(h), "Guardian
Ad Litem"; § 3509(i), "Adult Attendant"; § 3509(j), "Speedy Trial";
and § 3509(k), "Extension of Child Statute of Limitations."
The provision at issue in the present appeal
is subsection (k), currently codified at 18 USC § 3283, which states:



No statute of limitations that would otherwise
preclude prosecution for an offense involving the sexual or physical abuse
of a child under the age of 18 years shall preclude such prosecution before
the child reaches the age of 25 years.



Congress did not expressly address the relationship
of this provision to the UCMJ in either the language of the VCAA or its
legislative history.
We begin our consideration of the applicability
of the VCAAs statute of limitations to the UCMJ by reading this provision
in context  as one subsection of § 3509. The text of § 3509
demonstrates congressional intent to apply its provisions in federal district
courts, not courts-martial.
Section 3509(b)(1)(A), for example, which facilitates
the testimony of children via closed-circuit television, states that a
"guardian ad litem" is one of the individuals authorized
to request this form of testimony. Subsection (b)(1)(D) states that a childs
testimony will be transmitted for viewing by the "defendant, jury,
judge, and public." (Emphasis added.) Subsection (b)(2)(B)(v) requires
the "clerk of the court" to be responsible for the resultant videotape
of testimony. Subsection (c)(1) states that the statute shall not affect
Fed. R. Evid. 601, and subsection (d)(1)(B)(i) directs Department of Justice
employees to comply with certain privacy protections in the conduct of
a case. These provisions clearly reflect congressional intent to apply
§ 3509 to proceedings in federal district courts, where cases are
prosecuted by the Department of Justice in tribunals served by clerks of
court, the proceedings are subject to the Federal Rules of Evidence, verdicts
are rendered by juries, and judges are authorized to appoint guardians
adlitem.
None of the foregoing terms apply in the military justice system, where
courts-martial are convened by military officers for the trial of a single
case, the prosecution function is performed by judge advocates appointed
as trial counsel, verdicts are rendered by the members of the court-martial,
and the proceedings are governed by the Military Rules of Evidence.
The statute of limitations in § 3509 does
not provide a procedure that is necessary to the proper functioning of
the other components of § 3509. This is in contrast to the
tolling provision in the Right to Financial Privacy Act, 12 USC §
3419, which was at issue in Dowty. The tolling provision was an
integral part of the larger statutory scheme, which permitted a person
-- including members of the armed forces -- to delay criminal proceedings
by seeking a court order to prevent investigators from accessing personal
bank accounts. Without the tolling provision, there was a distinct possibility
that a person could escape prosecution by invoking the protective portions
of the Act to delay a prosecution. No such integral relationship exists
between the VCAA and its statute of limitations. The question of whether
the policy behind the extended statute of limitations in the VCAA warrants
application in courts-martial is a matter for consideration by Congress.
See
Spann, supra at 93.
We specifically reject the Governments suggestion
that because there is no language in the VCAA which states that it applies
only in federal district courts or that it does not apply in courts-martial,
we should adopt the statute of limitations in the VCAA. The enactment and
modification of federal criminal justice legislation has become one of
the most significant areas of congressional activity. The Government's
approach would require us to apply any broadly-worded, federal criminal
law amendment to the military justice system, regardless of its impact
on the powers of commanders and the rights of servicemembers. Although
Congress from time to time has stated that some statues within Title 18
do not apply to the UCMJ, this has not been a regular or consistent drafting
practice, and we decline to insist that Congress -- in dealing with civilian
criminal law matters -- must expressly exempt courts-martial from the coverage
of broadly worded statutes. See Dowty, supra at 109.
We hold that the court below erred when it
applied the statute of limitations codified at 18 USC § 3283 to appellants
court-martial. Article 43 provides the applicable statute of limitations.
Accordingly, specification 1 of Charge I and specification 1 of Charge
IV shall be dismissed as outside the statute of limitations.

II. PRODUCTION OF WITNESSES
A. Legal Requirements
Article 46, UCMJ, 10 USC § 846, provides
all parties to a court-martial with "equal opportunity to obtain witnesses
and other evidence in accordance with such regulations as the President
may prescribe." Under RCM 703(b)(1), Manual, supra, "[e]ach party
is entitled to the production of any witness whose testimony on a matter
in issue on the merits or on an interlocutory question would be relevant
and necessary." See also Mil.R.Evid. 401. A military judges
ruling on a request for a witness is reviewed for abuse of discretion.
United
States v. Rockwood, 52 MJ 98, 104 (1999). The decision on a request
for a witness should only be reversed if, "on the whole," denial of the
defense witness was improper. United States v. Ruth, 46 MJ 1, 3
(1997). We will not set aside a judicial denial of a witness request "unless
[we have] a definite and firm conviction that the [trial court] committed
a clear error of judgment in the conclusion it reached upon a weighing
of the relevant factors." United States v. Houser, 36 MJ 392, 397
(CMA 1993), quoting Judge Magruder in The New York Law Journal at 4, col.
2 (March 1, 1962).
Factors to be weighed to determine whether
personal production of a witness is necessary include: the issues involved
in the case and the importance of the requested witness to those issues;
whether the witness is desired on the merits or the sentencing portion
of the case; whether the witnesss testimony would be merely cumulative;
and the availability of alternatives to the personal appearance of the
witness, such as depositions, interrogatories, or previous testimony. United
States v. Tangpuz, 5 MJ 426, 429 (CMA 1978); Ruth, supra
at 4. Timeliness of the request may also be a consideration when determining
whether production of a witness is necessary. RCM 703(c)(2)(C); United
States v. Reveles, 41 MJ 388, 394 (1995).

B. Appellants Requests for Production
Appellant made pretrial requests, and submitted
pretrial motions, for the production of three witnesses: Mr. Juanito Perez,
Special Agent Ernest O. Joy, and Mr. Thomas Richter. The factual and legal
considerations with respect to each requested witness are considered separately
below.
1. Mr. Juanito Perez
In support of the request for Mr. Perez, defense
counsel stated that the proposed witness had known the victim's family
from 1987-1991. According to defense counsel, VR claimed that Mr. Perez
had raped her when she was 10 years old. Defense counsel asserted that
Mr. Perez would testify that the rape complaint was false and that he would
provide an opinion on VRs character for untruthfulness. Defense counsel
had not talked with Mr. Perez and relied upon statements Mr. Perez made
to VR's aunt to support his assertions.
The military judge denied the motion to produce
Mr. Perez. In a written ruling, the judge held the defense had failed to
show that the testimony was relevant and material. The military judge found
that there was an insufficient foundation for an opinion as to VRs truthfulness,
that Mr. Perezs testimony would be inadmissible as extrinsic evidence
under Mil. R. Evid. 608(b), and that an alleged rape by Mr. Perez provided
no motive for VR to lie about appellants relationship with her. The military
judge concluded that the testimony of Mr. Perez was not relevant or material.
We hold that the military judge did not abuse
his discretion in denying the request for Mr. Perez. Testimony from Mr.
Perez concerning the rape allegation made against him by VR, as described
by defense counsel, would have been irrelevant and would have provided
an insufficient basis upon which to attack VRs credibility. The allegation
against Mr. Perez and his unsurprising denial had no bearing on the validity
of VRs allegations against appellant, and they would not have established
a motive on VRs part to fabricate claims against appellant. See
United States v. Velez, 48 MJ 220, 227 (1998). This prior rape allegation
falls short of developing a relevant history of false sexual complaints
by VR.
2. Special Agent Ernest O. Joy
Defense counsel requested the presence of Special
Agent Joy, who had interviewed VR after the allegations of appellants
abuse came to light, to attack her credibility. Defense counsel claimed
that Special Agent Joy would testify about VRs poor recall of time frames,
coaching by VRs mother, prior inconsistent statements by VR, and the fact
that VR was punished for her relationship with appellant. Trial counsel
countered by introducing an affidavit from Special Agent Joy indicating
that he would not support the claims of poor time-frame recall, coaching,
or inconsistency. The affidavit also established that Special Agent Joy
had no personal knowledge of VR being punished for her relationship with
appellant. The military judge denied the motion to produce Special Agent
Joy, specifically finding that "there has been no showing of relevance
and necessity sufficient to require his testimony."
The military judge did not abuse his discretion
by denying the request to produce Special Agent Joy. Although poor recollection,
coaching, and prior inconsistent statements could have reflected negatively
on the truthfulness of VRs trial testimony, the military judge was presented
with clear evidence that Special Agent Joy would not testify as the defense
had proffered. In fact, the agents testimony arguably would have been
counterproductive for the defense, as it indicated that VR related details
of the encounters, was interviewed outside the presence of her mother,
and was not inconsistent in her portrayal of events. As to any punishment
suffered by VR because of her relationship with appellant, Special Agent
Joy had no personal knowledge of the matter, so he could not testify about
a subject of which he had no knowledge. See Mil.R.Evid. 602.
3. Mr. Thomas Richter
Defense counsel requested Mr. Thomas Richter
to testify about VRs home environment prior to living with appellant.
According to the defense proffer, Mr. Richter would have testified that
VRs parents ran a combination bar-brothel, that VR was often in the bar-brothel,
and that VR mimicked suggestive or erotic conduct that she observed there.
Defense counsel argued that this testimony explained where a child such
as VR would obtain sexual knowledge beyond her years and explained how
VR could fabricate sexual misconduct allegations against appellant. The
military judge denied the request for Mr. Richter, ruling that "any probative
value that might be existent here is substantially outweighed by the danger
of confusion and misleading the court members and inflaming them against
the character of the alleged victim in this case."
Defense counsel renewed the request for Mr.
Richter after VR testified. He asserted that the door to the relevance
of Mr. Richters testimony had been opened when VR testified that she had
gone to live with appellant because it was safer and because her mother
worked at night. The military judge found that the reasons VR may have
moved in with appellant were not relevant, and specifically stated, "The
information relevant to this is speculative, remote in time, collateral,
and any minimal probative value is substantially outweighed by the danger
of unfair prejudice."
We agree with the military judge that Mr. Richters
testimony was not relevant. Assuming that Mr. Richter observed VR in a
bar-brothel run by her parents, his testimony could not have imparted anything
about what VR actually observed, and could not have revealed anything about
what sexual matters VR understood when she was 6 years old, or what sexual
knowledge she obtained at that time. Even assuming that VR could have gained
some sexual knowledge by observation in a bar or brothel, the court members
would have been left to speculate about the nexus between those observations,
the sexual knowledge VR might have had when she was 6, the knowledge she
had when she was 15 (the period during which the claims against appellant
were investigated), and the knowledge she had when she was 17 and testifying
at appellants court-martial.

III. CROSS-EXAMINATION OF THE VICTIM
A. Background
At an initial session under Article 39(a),
UCMJ, 10 USC § 839(a), trial counsel moved, in limine,
to prevent the defense from questioning VR about the rape complaint she
made against Mr. Perez. Trial counsel contended that the allegation of
rape was irrelevant and created the danger of a trial-within-a-trial. Defense
counsel responded that he intended to cross-examine VR on the rape allegation
as a specific act of misconduct, should she happen to state that the allegation
was false, to impeach her credibility under Mil.R.Evid 608(b). The military
judge indicated that he was "not going to make any type of a ruling in
limine that would restrict your rights to cross-examine any valid
areas," and specifically stated that he would allow counsel to ask VR whether
she had made a false rape allegation. The military judge also indicated
that either party could re-address this ruling prior to trial.
A replacement military judge was appointed
after the initial military judge was transferred. The new judge considered
two motions in limine by trial counsel. The first sought
to prevent any mention at trial of the bar-brothel in which VR may have
observed and mimicked sexual acts. Defense counsel responded by noting
his concern that trial counsel might paint an inaccurate picture of the
victim. Defense counsel agreed, however, that he would have to wait until
the door was opened for evidence about the bar-brothel to be brought forward.
The military judge granted the motion, noting, "[D]efense, if you feel
that trial counsel has done something . . . and you feel that the door
has been reasonably opened, Ill entertain the issue again."
The second motion in limine made
by trial counsel raised the same issue ruled upon by the first military
judge at the initial Article 39(a) session  preventing defense counsel
from questioning VR about the rape allegation against Mr. Perez. Defense
counsel argued that the prior false allegation of rape against Mr. Perez
was relevant to VRs credibility and was a proper subject for cross-examination.
Trial counsel responded that the only indication that the allegation was
false was the denial by Mr. Perez, the alleged perpetrator, and that this
evidence would simply open up extensive collateral litigation. The military
judge ruled:


With regard to the government motion in limine
to preclude the defense from cross-examining the alleged victim, [V], under
M.R.E. 608(b) about her alleged rape by Mr. Juanito Perez, the court fails
to find sufficient basis exists to challenge the witnesss truthfulness
on this matter based solely upon the denial of the incident by the alleged
perpetrator. Moreover, the court finds that the details of this unrelated
rape are collateral in nature, not relevant or material to a matter in
issue in this case and that any minimal probative value is substantially
outweighed by the danger of unfair prejudice and would lead to confusion
of the members.
Should more details be brought forth during
the course of the trial that causes defense to believe that a more sufficient
basis has been established on this matter, the defense may ask for a 39(a)
session prior to the beginning of cross-examination of [V], and ask the
court to revisit the issue.


After VRs direct testimony, defense counsel urged
that the door had been opened to cross-examination on the subject of the
bar-brothel. Specifically, defense counsel urged that VRs comments about
moving in with appellant because it would be "safer" for her, comments
about her mother working at night, and comments indicating that VR thought
sexual intercourse was people kissing opened the door to clarifying those
matters for the members and providing this information so that the members
could assess VRs credibility.
The military judge denied the request to cross-examine
VR about these matters. He specifically found them to be "not relevant"
as well as "speculative, remote in time, collateral, and any minimal probative
value is substantially outweighed by the danger of unfair prejudice."

B. Confrontation and Cross-Examination of Witnesses
The Sixth Amendment protects an accuseds right
to confrontation and cross-examination: "In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him." See Delaware v. Van Arsdall, 475 U.S. 673,
106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Anderson,
51 MJ 145 (1999). Mil.R.Evid. 611(b) establishes the scope of cross-examination
at trials by court-martial, limiting cross-examination to "the subject
matter of the direct examination and matters affecting the credibility
of the witness." Trial judges have broad discretion to impose reasonable
limitations on cross-examination, "based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness safety,
or interrogation that is repetitive or only marginally relevant." Van
Arsdall, supra at 679, 106 S.Ct. at 1435; see, e.g.,
Mil.R.Evid. 303; see also Velez, 48 MJ at 226.
A military judges ruling on the admissibility
of evidence is reviewed for an abuse of discretion. United States v.
Schlamer, 52 MJ 80, 84 (1999); United States v. Johnson, 46
MJ 8, 10 (1997). A decision to admit or exclude evidence under Mil.R.Evid.
403 is also reviewed for an abuse of discretion. United States v. Lake,
36 MJ 317, 322 (CMA 1993). The abuse of discretion standard is a strict
one, calling for more than a mere difference of opinion. The challenged
action must be "arbitrary, fanciful, clearly unreasonable," or "clearly
erroneous." United States v. Miller, 46 MJ 63, 65 (1997); United
States v. Travers, 25 MJ 61, 62 (1987).

C. Discussion
We agree with the Court of Criminal Appeals
that the military judge did not abuse his discretion. The substance of
Mr. Perezs statement, proffered from a secondhand source, amounted merely
to his denial of an unrelated rape accusation made by the victim. As the
military judge ruled, the accusation against Mr. Perez was irrelevant to
the trial, provided an insufficient basis upon which to attack VRs credibility,
had no bearing on the validity of the allegations involving appellant,
and did not establish a motive on VRs part to fabricate allegations against
appellant.
In the context of limiting cross-examination
of a witness, we have held that "[t]he mere filing of a complaint is not
even probative of the truthfulness or untruthfulness of the complaint filed
. . . . Thus, its relevance on the question of credibility of a different
complaint in an unrelated case, such as appellants, escapes us." Velez,
supra
at 227 (citation omitted). The record in this case reflects nothing more
than a mere complaint of rape made by the victim against Mr. Perez; defense
counsel proffered no evidence showing the complaint to be false, other
than the unsurprising denial by Mr. Perez. The military judge refused to
allow defense counsel to open an inquiry into whether the other rape occurred
or whether the victim lied about it when counsel had not established a
basis to do so. There was no abuse of discretion in precluding cross-examination
into such collateral matters, and appellant has demonstrated no basis upon
which to conclude that the ruling was "arbitrary, fanciful, clearly unreasonable,"
or "clearly erroneous." United States v. Miller,
supra.
We also agree that cross-examination about
a bar-brothel was not relevant to any fact in issue. The reason that VR
moved in with appellant, her uncle, was not a fact in issue and did not
bear on any matter of consequence in the case. Similarly, even assuming
that she moved in with appellant to escape the environment of a bar-brothel,
that is a fact that does not bear upon VRs credibility.
Defense counsel failed to show a causal connection
between the bar-brothel and VRs credibility at appellants court-martial.
VR was 17 years old when she testified. What she might or might not have
observed in a brothel at 6 or 7 years of age was not shown to have had
any influence upon her understanding of sexual matters when she testified
nearly 10 years later. She was no longer a child of tender years. It would
be mere speculation to determine what, if anything, she observed in the
bar-brothel 10 years earlier shaded her trial testimony or motivated her
to testify falsely against appellant.
We also agree with the military judges balancing
assessment pursuant to Mil.R.Evid. 403. Assuming some marginal relevance
of the prior rape allegation and the exposure to a bar-brothel environment,
any relevance was heavily outweighed by the risk of diverting the members
attention to lurid collateral issues rather than the pivotal facts of the
case at hand. The minimal probative value of this evidence did not warrant
the risk of expending undue time litigating the facts of the rape allegation
or the sexual nature of the conduct in the brothel. The military judge
did not abuse his discretion by determining that any probative value was
substantially outweighed by those dangers recognized in Mil.R.Evid. 403.

CONFIDENTIAL COMMUNICATIONS BETWEEN SPOUSES
UNDER MIL.R.EVID. 504(b)
A. Background
Appellant engaged in intimate correspondence
with VR for approximately 6 years after he was transferred away from the
Philippines. More than 100 pages of correspondence between the two were
admitted at trial. The sexual nature of appellants relationship with VR
was uncovered through this correspondence when his wife intercepted and
read a letter from VR to appellant in which VR repeatedly proclaimed her
love for appellant and intention to keep her promise to "wait for him."
After reading the letter, Mrs. McElhaney called
appellant, who was on temporary duty at the time, and demanded an explanation.
According to Mrs. McElhaney, appellant told her that he was in love with
their niece, VR, that the relationship had been going on for a long time,
and that the two had attempted intercourse on one occasion. Mrs. McElhaney
also sent VRs parents a copy of the letter. Shortly thereafter, appellant
wrote a lengthy letter to VRs parents, confessing that he and VR had been
in love for a long time, detailing their "stolen kisses," and reassuring
her parents that the relationship was not sexual. Appellant also wrote
a letter to VR, advising her that her aunt and parents now knew about their
relationship. As he phrased it, "Well sweetheart, the cat is out of the
bag so to speak. Nena read the letter you wrote to me and she also knows
that you and I have been in love with each other for years" and "when I
return home to Japan, I will keep no secrets about you and me. Well, maybe
a few, but Im going to tell her how much I love you and how long weve
been at this."
The substance of appellants conversation with
his wife became an issue at trial when appellant asserted the marital confidential
communications privilege in Mil.R.Evid. 504(b) to prevent trial counsel
from questioning Mrs. McElhaney about what he said when confronted with
his relationship with VR. In an Article 39(a) session prior to Mrs. McElhaney
taking the witness stand, the military judge ruled that appellant could
not avail himself of the privilege because he was charged with an offense
which also constituted a crime against the marriage, citing the exception
in Mil.R.Evid. 504(c)(2)(A). During cross-examination, trial counsel asked
Mrs. McElhaney if appellant admitted to attempting intercourse with VR,
and she answered, "He said  We tried. I got scared, so I stopped." During
redirect examination, defense counsel asked Mrs. McElhaney to clarify whether
appellants "we tried" statement indicated penetration of VR, but subsequent
interruption of the act of intercourse. In response, she testified: "Theres
no indication of penetration. He was just  they started kissing and all
that, and he got scared, so they had to stop."
The court below rejected the military judges
reasoning, relying upon United States v. Massey, 15 USCMA 274, 35
CMR 246 (1965). The court instead found that the statement was admissible
because appellant had waived the privilege by disclosing essentially the
same information in his letters to VR and her parents. 50 MJ at 830.

B. The Marital Communications Privilege
Many of the evidentiary privilege rules derived
from the common law are codified in the military justice system. Compare
Fed.R.Evid. 501 with Mil.R.Evid. 501-12. The spousal privileges
are found in Mil.R.Evid. 504. Subsection (b) sets forth the privilege encompassing
confidential communications made during marriage:
 

(1) General rule of privilege.
A person has a privilege during and after the marital relationship to refuse
to disclose, and to prevent another from disclosing, any confidential communication
made to the spouse of the person while they were husband and wife and not
separated as provided by law.
(2) Definition. A communication is "confidential"
if made privately by any person to the spouse of the person and is not
intended to be disclosed to third persons other than those reasonably necessary
for transmission of the communication.

This rule requires three conditions to be met
for the privilege to be upheld: (1) a communication, (2) intended to be
confidential, (3) between married persons not separated at the time of
the communication. United States v. Peterson, 48 MJ 81, 82 (1998).
This privilege may be waived under Mil.R.Evid. 510(a) if the holder of
the privilege "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." We have held, in harmony
with federal civilian law, that communications made in the presence of
third parties, or revealed to third parties, are not privileged. SeePeterson,
supra.
The decision to admit evidence is reviewed
for an abuse of discretion. United States v. Schlamer, supra.
Whether a conversation is privileged is a mixed question of law and fact.
United
States v. Napoleon, 46 MJ 279, 284 (1997). 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."
Miller,
46 MJ at 65; Travers, 25 MJ at 62.

C. Discussion
The narrow question posed by this issue is
whether elliptical references, voluntarily made to a third party, to the
content of a marital communication amount to a disclosure sufficient to
waive the privilege under Mil.R.Evid. 510. In the present case, appellant
alluded to his conversation with his wife in his letters to VR and her
parents, using phrases like --"Well, sweetheart, the cat is out of the
bag"; "Nena read the letter and she also knows . . ."; "I will keep no
secrets. Well, maybe a few but Im going to tell her how much I love you
and how long we have been at this"; and "stolen kisses." Under Mil.R.Evid.
510(a), we must decide whether appellant disclosed a "significant part"
of the marital communication.
The context of the purported disclosure is
key to determining whether an accused has waived the marital communications
privilege. The holder must voluntarily disclose a significant part of the
matter "under such circumstances that it would be inappropriate to allow
the claim of privilege." Mil.R.Evid. 510(a). In this case, appellant wrote
to VR to warn her that her aunt (appellants wife) and her parents knew
about them -- that the "cat is out of the bag." The common understanding
of this phrase is that a secret is no longer secret, and in this case,
the fair inference is that the "secret" was appellants sexual relationship
with VR. Moreover, appellant gave this warning not to an uninformed third
party, but to the one person who would be intimately familiar with the
nature, details, and history of the "secret" -- his partner in the illicit
relationship. Only VR could understand the import of the letter, which
is laden with innuendo about the extent of their relationship and with
warnings to beware the hard times about to come since the secret has been
exposed. In this context, appellants references communicate more than
the mere fact that a conversation occurred with his wife; they show his
intent to have VR understand the overall substance of the conversation
by relying upon their shared history. Compare Engelmann v. National
Broadcasting Co., Inc., 130 Lab.Cas. (CCH) ¶ 33,325, 1995 U.S.
Dist. Lexis 4725 (S.D.N.Y. 1995)(wifes deposition answers, taken as a
whole, sufficiently characterized conversations with her husband so as
to constitute waiver of her privilege in later proceeding), with
United States v. Rakes, 136 F.3d 1 (1st Cir. 1998)(defendants
limited disclosure to an uninformed third party held not sufficient to
constitute waiver of the marital communications privilege because the disclosure
was minimal and was intended to ward off debt collection, not to reveal
what the defendant told his wife).
Appellants willingness to characterize the
substance of his conversation with his wife voluntarily to third parties
is highlighted in his letter to VRs parents. In that letter, he denies
having a sexual relationship with VR and specifically notes "stolen kisses"
-- details that correspond with his wifes account of their conversation.
We agree with the lower court that appellants successive, voluntary disclosures
to VR and her parents, viewed in the particular factual context of this
case, revealed a "significant part" of his communication to his wife and
constitute waiver of his marital communications privilege.

V. EXPERTS TESTIMONY ON REHABILITATIVE POTENTIAL
AND
FUTURE DANGEROUSNESS
A. Background
The Government presented one witness for its
sentencing case, Dr. Morales, a child psychiatrist, to testify on appellants
rehabilitative potential and victim impact. Defense counsel objected to
the experts testimony about rehabilitative potential on the basis that
Dr. Morales did not have a proper foundation to offer an opinion because
he had not examined appellant, reviewed his medical or personnel records,
and had gained all of his information about appellant from the victim and
observations in court. Counsel was also concerned that, under the guise
of rehabilitative potential, Dr. Morales would diagnose appellant as a
pedophile and would comment on his future dangerousness, even though Dr.
Morales had stated in his proffered testimony that he could not diagnose
appellant because he had not evaluated him. The military judge allowed
Dr. Morales to testify about specific victim impact and "future dangerousness
of the accused." He also permitted Dr. Morales to testify that appellants
behavior was "consistent" with the "profile" of a pedophile, but ruled
that the Government could not state that appellant had been diagnosed a
pedophile.
Dr. Morales testified before the members that
appellant met the criteria for pedophilia and that his risk of reoffending
was high. As to rehabilitative potential, he testified:



Pedophilia in general has a very poor prognosis.
All the research shows that the best that one could hope for would be for
somebody to get to the point in their lives where they are so afraid of
the legal system that they may not act on their urges or impulses, or that
the actual urges or impulses go away completely is very unlikely [sic],
so that people around this person is [sic] always at risk.



After the military judge pointed out that this
statement was a generalization and asked the witness to talk specifically
about appellant, Dr. Morales added:



Its consistent with a poor prognosis would
be [sic] that the person was brought in by the legal system. A good prognosis
would be somebody who is so disturbed by their behavior that they sought
help before the legal system had to intervene. So, based on that, he meets
the criteria for somebody with a poor prognosis.



The court below affirmed the military judges
ruling, noting that future dangerousness is an appropriate consideration
for an opinion on rehabilitative potential and the fact that Dr. Morales
never examined appellant went to the weight of his testimony on pedophilia,
not its admissibility. 50 MJ at 831.

B. Discussion
When counsel has objected to testimony, we
review a military judges ruling on the admissibility of expert testimony
for an abuse of discretion. Houser, 36 MJ at 397. The scope of expert
testimony is governed by Mil.R.Evid. 702 and 703. We have required that
the proffered testimony meet certain criteria for admissibility: (1) that
the expert is qualified, (2) that the subject of the testimony is within
the realm of the experts qualification, (3) that the expert has an appropriate
basis for the testimony, (4) that the testimony is relevant, (5) that the
testimony is reliable, and (6) that testimony meets the balancing test
under Mil.R.Evid. 403. United States v. Halford, 50 MJ 402, 405
(1999).
RCM 1001 establishes criteria for evidence
presented at sentencing. Specifically, RCM 1001(b)(5)(A) permits the presentation
of evidence on rehabilitative potential. RCM 1001(b)(5)(B) requires that
this evidence be based on a proper foundation  that the witness possess
"sufficient information and knowledge about the accused to offer a rationally-based
opinion that is helpful to the sentencing authority."
The military judge allowed Dr. Morales to testify
that appellant exhibited characteristics in common with pedophiles and
to offer an opinion on appellants future dangerousness based upon those
characteristics. He allowed this despite the fact that Dr. Morales was
a child psychiatrist, not a forensic psychiatrist, had not examined appellant
or reviewed his medical or personnel records, and had testified that he
could not render a diagnosis of pedophilia without examining appellant.
Although the lack of contact with an accused bears upon the weight to be
given to an experts testimony, not its admissibility, United States
v. Stinson, 34 MJ 233, 239 (CMA 1992), there are additional factors
present in this case that demonstrate that it was not appropriate for Dr.
Morales to offer an opinion on appellants rehabilitative potential.
Dr. Morales testified that he had no information
about appellants medical history because he had not reviewed any medical
or
personnel records. Testimony that appellant's behavior was consistent with
pedophilia amounted, for all practical purposes, to labeling appellant
a pedophile because Dr. Morales went on to give a prognosis for rehabilitative
potential that was premised on that assumption.3
Furthermore, he gave generalized testimony about the rehabilitative potential
of pedophiles, did not indicate the source of this information (e.g., personal
experience, studies, or literature), and did little to make a specific
link with appellant when the military judge noted the error, as the quoted
passages above indicate.
The military judge erred by allowing Dr. Morales
to testify about the future dangerousness of appellant as related to pedophilia.
Cf.United
States v. Latorre, 53 MJ 179 (2000)(Government did not lay an adequate
foundation for experts testimony regarding rehabilitative potential where
expert testified generally about his "studies"). If, as the court below
noted, "[e]ven a layman, when given [Dr. Moraless] definition, could conclude,
based upon the facts in evidence, that the appellants behavior with [VR]
met these criteria," it is difficult to see how Dr. Moraless testimony
on this point offered expert knowledge to aid the court.
See Mil.R.Evid.
702 and RCM 1001(b)(5)(B).
It is not necessary to determine whether the
admission of Dr. Moraless testimony "materially prejudiced the substantial
rights" of appellant. Art. 59(a), UCMJ, 10 USC § 859(a). Our resolution
of Issue I requires that appellant receive a rehearing on sentence, or
in the alternative, that the Court of Criminal Appeals reassess appellants
sentence. We simply note that should a rehearing be held, the Government
should be mindful of the need to establish an appropriate foundation for
an experts testimony on rehabilitative potential. Alternatively, should
the court below choose to reassess the sentence, it must do so without
consideration of Dr. Moraless testimony concerning appellants future
dangerousness.

VI. CONCLUSION
The decision of the United States Air Force
Court of Criminal Appeals affirming the findings of guilty of specification
1 of Charge I and specification 1 of Charge IV, and the sentence, is reversed.
The findings of guilty of specification 1 of Charge I and specification
1 of Charge IV are set aside and those specifications are dismissed. The
record of trial is returned to the Judge Advocate General of the Air Force
for remand to the Court of Criminal Appeals. That court may reassess the
sentence or order a sentence rehearing.
FOOTNOTES:
1 One specification
of an indecent act with a child was withdrawn after arraignment.
2
At trial, appellant was convicted of the lesser-included offense of attempted
rape, making the military judges ruling with respect to Article 43(a)
and the charge of rape inapplicable on appeal. The lower court found that
as 18 USC § 3283 applied to courts-martial and to appellants case,
the attempted rape conviction was swept within the ambit of the statute.
3As
Chief Judge Crawford's separate opinion notes, there are circumstances
in which it is appropriate for an expert to testify that an individual's
behavior is consistent with the characteristics of a particular behavioral
type. As her opinion recognizes, however, Dr. Morales testified that appellant
met the Diagnostic and Statistical Manual of Mental Disorders' criteria
for pedophilia. ___ MJ (6). In terms of the effect on the court-martial
panel, there is no practical difference between a statement opining that
a person is a pedophile and a statement opining that a person meets the
recognized diagnostic criteria for pedophilia. In both cases, the court-martial
panel would reasonably conclude that an expert had advised them that appellant
was a pedophile.


CRAWFORD, Chief Judge (concurring in part and
dissenting in part):
I concur with the majoritys decisions and
reasoning with regard to Issues I, II, and III, with the dismissal of specification
1, Charge I, and specification 1, Charge IV, and with the decision to affirm
the remainder of the findings. Finally, I agree with so much of the majority
conclusion as remands this case to the Court of Criminal Appeals for that
court to reassess the sentence or refer the case to a convening authority
to hold a rehearing on appellants sentence.
Regarding Issue IV, I agree with the majority
that appellants voluntary disclosures in the context of this case constitute
a wavier of his marital communication privilege. Although not necessary
to the disposition of this issue, I fully concur with Judge Sullivans
view that "[i]t is a crime against the marriage for one spouse to molest
the other spouses child, ... even though the alleged victim was neither
a marital nor adopted child of either spouse." ___ MJ (4).
Finally, as to Issue V, I find no error in
the military judges decision to admit Dr. Moraless testimony on appellants
rehabilitative potential.
A military judges decision to admit evidence,
to include the testimony of an expert witness, is reviewed for abuse of
discretion. See United States v. Raya, 45 MJ 251, 252 (1996);
United
States v. Sullivan, 42 MJ 360, 363 (1995); Mil.R.Evid. 702, Manual
for Courts-Martial, United States (1998 ed.). His decision to admit
evidence will not be overturned "absent a clear abuse of discretion."
United
States v. Johnson, 46 MJ 8, 10 (1997), citing United States v. Redmond,
21 MJ 319, 326 (CMA 1986).
"Absent a prohibition in the RCM 1000 series,
Manual [,supra,]... the analytical model for admissibility of expert
testimony is set forth in United States v. Houser, 36 MJ 392, 397
(CMA [1993])." United States v. Prevatte, 40 MJ 396, 397 n.* (CMA
1994). Dr. Moraless testimony concerning victim impact was admissible
under RCM 1001(b)(4), and his testimony concerning appellants future dangerousness
was admissible under RCM 1001(b)(5). Even if, as the majority finds, Dr.
Moraless testimony was inadmissible pursuant to RCM 1001(b)(5), his testimony
could still have been admitted under RCM 1001(b)(4) because the future
dangerousness of appellant was related to the impact on the victim. See
United States v. Ariail, 48 MJ 285, 287 (1998).
During the sentencing phase of a court-martial,
opinion evidence on the issue of rehabilitation potential is admissible.
RCM 1001(b)(5). Like other opinion evidence, expert opinion evidence must
be based on a proper foundation. RCM 1001(b)(5)(B). To have a proper foundation,
the witnesss opinion must be based on "sufficient information and knowledge
about the accused to offer a rationally-based opinion that is helpful to
the sentencing authority. Relevant information and knowledge include, but
are not limited to, information and knowledge about the accuseds character,...
determination to be rehabilitated, and nature and severity of the offense
or offenses." Id.
Expert testimony is permitted in the form of
opinion evidence, if the experts specialized knowledge will assist the
trier of fact to understand the evidence or determine a fact in issue.
Mil.R.Evid. 702. The military judges role is to screen the scientific
evidence and opinion testimony to make sure (1) that the expert is qualified,
(2) that the subject of the testimony is within the realm of the experts
qualification, (3) that the expert has an appropriate basis for the testimony,
(4) that the testimony is relevant, (5) that the testimony is reliable,
and (6) that the testimony meets the balancing test of Mil.R.Evid. 403.
Houser,
36 MJ at 397; see United States v. St. Jean, 45 MJ 435 (1996);
United
States v. Halford, 50 MJ 402 (1999); see also Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Appellant does not contend that expert testimony
concerning future dangerousness and lack of rehabilitative potential of
a pedophile is per se inadmissible. To the contrary, this
Court has found such testimony to be both relevant and reliable. See
United States v. Stinson, 34 MJ 233 (CMA 1992); United States
v. Williams, 41 MJ 134 (CMA 1994); see also United
States v. Scott, 51 MJ 326, 330 (1999).
Counsels attack in this case on Dr. Moraless
testimony is bottomed on a failure of the Government to establish a proper
foundation for his opinion. Dr. Morales never met appellant; never reviewed
appellants medical or personnel records; and based his opinion on observations
at trial (where appellant did not testify) and two interviews (one with
the victim and the other with the victims mother), as well as some of
the passionate letters which appellant wrote to the victim. Accordingly,
the defense alleges Dr. Morales had no foundational basis on which to opine
about appellants "future dangerousness." While predictions of future dangerousness
are permissible testimony during sentencing, appellant contends that Dr.
Moraless opinion of appellants future dangerousness was predicated on
the fact that he, appellant, met the criteria for pedophilia.
Prior to direct examination, trial counsel
established Dr. Morales as an expert witness in the field of child psychology.
Dr. Morales is a medical doctor with additional specialized training in
psychiatry. His first 4 years of residency training included 14 months
in inpatient psychiatry, 4 months in inpatient child psychiatry, and 2
months in the psychiatric emergency room. In addition, his 5th year of
residency consisted entirely of work in outpatient child and adolescent
psychiatry. In his postgraduate years, Dr. Morales served as attending
psychiatrist at the National Naval Medical Center, Staff Psychiatrist at
Rikers Island Prison, a Qualified Examiner on the Westchester Medical Center
Crisis Team, and Psychiatrist On Call at the Danbury Hospital Emergency
Room. Dr. Morales has treated "hundreds" of children, about 20 percent
of whom were sexual abuse patients. He was assigned at the time of trial
as a child psychiatrist at the Yokosuka Naval Hospital.
Dr. Morales never diagnosed appellant as a
pedophile, as made clear by the record of trial. In fact, Dr. Morales categorically
stated that he could not render a diagnosis of appellant because he had
not examined him. Dr. Morales stated only that appellant met the Diagnostic
and Statistical Manual of Mental Disorders (DSM IV) criteria for pedophilia.
Clearly, his status as an expert witness enabled
him to render this opinion. Based on appellant meeting the criteria for
pedophilia, in addition to the insight which Dr. Morales had gained of
appellant through reviewing letters that appellant had written to the victim,
and interviewing the victim and her mother, Dr. Morales fairly noted that
appellant had an inability to recognize the extent of his problem. An inability
to recognize the extent of ones problem certainly translates into a lack
of rehabilitative potential, as well as perhaps a future menace to society,
in general, and the victim in particular. See RCM 1001(b)(4).
As did the court below, we should apply the
test established in United States v. Stinson to determine the admissibility
of Dr. Moraless expert testimony. See 50 MJ at 831. Clearly, the
witness was qualified as an expert. The third prong of the Stinson
test was met, as the material on which Dr. Morales relied in fashioning
his opinion was both relevant and factually based. The fourth prong of
the Stinson test, which we added in United States v. Banks,
36 MJ 150 (CMA 1992), was met in this case, as the judge conducted a Mil.R.Evid.
403 balancing test on the record.
What remains for resolution is the second prong
of Stinson: Was the testimony within the limits of Dr. Moraless
expertise? As a medical doctor with additional specialization in psychiatry,
Dr. Morales was clearly able to define pedophilia and objectively determine
that appellants intense desire for the victim (who was 9 years old when
the relationship started) not only fit within the boundaries of the definition
of pedophilia, but also had a future impact on the victim. See RCM
1001(b)(4) and (5). Unlike the situation in United States v. Latorre,
53 MJ 179 (2000), Dr. Moraless conclusions and opinion were based upon
a definition in the DSM IV, not some study that had not gained acceptance
in the scientific community at large.


SULLIVAN, Judge (concurring in part and dissenting
in part):
I disagree with the majority's decision to
dismiss appellant's conviction on specification 1 of Charge I and specification
1 of Charge IV and its decision to remand for a rehearing on sentence or
for a reassessment of sentence. I would affirm the lower appellate court's
decision, although I do not join its rationale on all the questions of
law raised in this case.
Turning to Issue I, I would affirm the decision
of the lower appellate court because, in my view, the statute of limitations
in the Victims of Child Abuse Act of 1990, now codified at 18 USC §
3283, applied to appellant's case. See United States v. Dowty,
48 MJ 102, 112 (1998) (Sullivan, J., concurring in part and in the result);
see
also H.R. Rep. No. 101-681, pt. 1, at 166 (1990), reprinted in 1990
U.S.
Code Cong. & Admin. News 6572 (stating an intent to bring federal
practice in line with "innovative [state] procedures that have far outpaced
Federal law, leaving those children who do enter the Federal system (through
military bases, Indian reservations, and from other federal lands and
facilities) inadequately protected") (emphasis added).
Regarding Issue III, I disagree with the majority
opinion that the military judge did not err when he restricted the cross-examination
of the victim. Mil. R. Evid. 608(b), Manual for Courts-Martial, United
States (1995 ed.), allows the defense to cross-examine an alleged victim
about past false complaints of rape made against a person other than the
accused, as opposed to the mere fact that a complaint of rape was made.
CompareUnited
States v. Stavely, 33 MJ 92, 94 (CMA 1991), and United States v.
Bahr, 33 MJ 228, 233-34 (CMA 1991), withUnited States v. Velez,
48 MJ 220, 227 (1998). Nevertheless, in view of my resolution of Issue
IV below, this error was harmless beyond a reasonable doubt.
On Issue IV, I would hold that appellant's
statements to his wife were not protected by the husband-wife privilege
because they fell within an exception to Mil. R. Evid. 504(b), i.e.,
the alleged victim was a de facto child. See Mil.
R. Evid. 504(c)(2)(A). In doing so, I would reverse the reasoning of the
lower appellate court, especially its reliance on United States v. Massey,
15 USCMA 274, 35 CMR 246 (1965). See United States v. Menchaca,
23 USCMA 67, 48 CMR 538 (1974) (holding that accused injured his wife when
he sexually molested her child by a previous marriage; noting that para.
148e of the 1969 Manual for Courts-Martial (Rev. ed.) made obsolete the
holding of Massey). It is a crime against the marriage for one spouse
to molest the other spouse's child, even though the alleged victim was
neither a marital nor adopted child of either spouse. Here, she was covered
by this exception because there was testimony that appellant's wife was
the guardian of the victim while appellant molested her. (R. at 434). See
United States v. McCarty, 45 MJ 334, 336 (1996)(Sullivan, J., concurring
in the result); United States v. Bahe, 128 F.3d 1440, 1446 (10th
Cir. 1997), cert. denied, 523 U.S. 1033 (1998); Mil. R. Evid. 504(b).
Finally, on Issue V, I would hold that the
military judge did not abuse his discretion in ruling that Dr. Morales
was qualified and had an adequate basis for commenting on appellant's lack
of rehabilitative potential. (R. at 578, 581-82). There is no requirement
that a psychotherapist expert personally evaluate an accused before rendering
an opinion on his rehabilitative potential. See Barefoot v. Estelle,
463 U.S. 880, 903-04 (1983); United States v. Stinson, 34 MJ 233,
239 (CMA 1992); United States v. Williams, 41 MJ 134, 138 (CMA 1994);
RCM 1001(b)(5)(B) & (C), Manual, supra (1995 ed.); Mil. R. Evid.
702.


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