                         UNITED STATES, Appellee

                                         v.

                        Webster M. SMITH, Cadet
                      U.S. Coast Guard, Appellant

                                  No. 08-0719
                            Crim. App. No. 1275

       United States Court of Appeals for the Armed Forces

                             November 10, 2009

                                March 29, 2010

STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.


                                     Counsel


For Appellant: Ronald C. Machen, Esq. (argued); Commander Necia
L. Chambliss, Will L. Crossley, Esq., and Daniel S. Volchok,
Esq. (on brief); Lieutenant Robert M. Pirone and Stuart F.
Delery, Esq.

For Appellee: Lieutenant Emily P. Reuter (argued); Commander
Stephen P. McCleary, Lieutenant Commander Brian K. Koshulsky,
and Lieutenant Alfred J. Thompson.

Military Judge:    Brian M. Judge


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Smith, No. 08-0719/CG


     Judge STUCKY delivered the judgment of the Court.

     At trial, the military judge limited Appellant’s cross-

examination of Cadet SR, the Government’s only witness on his

three convictions related to sexual misconduct.   We granted

review to decide whether Appellant was denied his right to

confront his accuser on those three specifications.   We hold

that Appellant was not denied his right to confront his accuser,

and affirm.

                                 I.

     A general court-martial consisting of members convicted

Appellant, contrary to his pleas, of attempting to disobey an

order, going from his place of duty, sodomy, extortion, and

indecent assault.   Articles 80, 86, 125, 127, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 925,

927, 934 (2006).    The convening authority approved the sentence

the members adjudged:   a dismissal, confinement for six months,

and forfeiture of all pay and allowances.   The United States

Coast Guard Court of Criminal Appeals affirmed on April 9, 2008.

United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App.

2008).   Appellant filed a motion for reconsideration which was

denied on May 14, 2008.    Appellant petitioned this Court for

review on July 14, 2008.




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United States v. Smith, No. 08-0719/CG


                                II.

     As a preliminary matter, the Government contends that

Appellant’s petition for review was not timely filed, and that

therefore the grant of review should be dismissed as

improvidently granted.   Article 67(b), UCMJ, 10 U.S.C. § 867(b)

(2006), provides that an accused has sixty days to petition this

Court for review from the earlier of “(1) the date on which the

accused is notified of the decision of the Court of Criminal

Appeals; or (2) the date on which a copy of the decision . . . ,

after being served on appellate counsel of record for the

accused . . . is deposited in the United States mails for

delivery by first class certified mail to the accused.”    In

United States v. Rodriguez, we held that the sixty-day statutory

period for filing petitions for review was jurisdictional and

could not be waived.   67 M.J. 110, 116 (C.A.A.F. 2009).

     Before filing a petition for review at this Court,

Appellant timely sought reconsideration of the CCA’s decision.

Until the CCA rendered a decision on the reconsideration

request, either by denying reconsideration or by granting

reconsideration and rendering a new decision, there was no CCA

decision for this Court to review.    We hold that Appellant’s

sixty-day period for filing at this Court began on the date the

defense was formally notified, under the provisions of Article

67(b), UCMJ, of the CCA’s decision on reconsideration.     The


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United States v. Smith, No. 08-0719/CG


evidence of record does not support the Government’s contention

that the appeal was untimely filed.

                               III.

     Appellant and Cadet SR were cadets at the United States

Coast Guard Academy.   During the summer of 2005, Cadet SR and

Appellant were assigned to neighboring Coast Guard cutters in

Norfolk, Virginia.   While there, Cadet SR committed an

indiscretion that could have jeopardized her ranking as a cadet

and threatened her Coast Guard career.   Shortly thereafter,

Appellant sent her a text message saying that he hoped the

rumors he was hearing were not true.   Cadet SR discussed the

situation with Appellant but lied about some of the details.

Appellant “said he’d try to squash rumors, and that it would be

okay.”

     In October of that year, after both had returned to the

Academy, Appellant notified Cadet SR that the rumors were

persisting.   She then truthfully disclosed the details of her

indiscretion.   Appellant said he would continue to try to

suppress the rumors, but that he needed motivation to do so.

Appellant denied he was seeking sexual favors but suggested the

couple take a photograph of themselves naked together to build

“trust in one another.”   After the photo, Appellant left but

returned to her room later that evening.   On this occasion, he




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United States v. Smith, No. 08-0719/CG


inserted his fingers in her vagina and placed his tongue on her

clitoris.   Cadet SR then performed fellatio on him.

                                IV.

     Appellant alleged that Cadet SR’s indiscretion involved

engaging in sex with an enlisted member and, pursuant to

Military Rule of Evidence (M.R.E.) 412(c)(1), Appellant moved to

admit evidence of this prior sexual conduct.   That rule provides

that “[e]vidence offered to prove that any alleged victim

engaged in other sexual behavior” is not generally admissible.

M.R.E. 412(a)(1).   However, “evidence the exclusion of which

would violate the constitutional rights of the accused” is

admissible.   M.R.E. 412(b)(1)(C).

     During a closed hearing conducted pursuant to M.R.E.

412(c)(2), Appellant testified that in May 2005 Cadet SR told

him that she had had nonconsensual sexual encounters with an

enlisted member, but that in October 2005 she admitted that

those sexual encounters had actually been consensual.   Cadet SR

invoked her right against self-incrimination and did not testify

at the hearing.   Appellant argued that he should be allowed to

question Cadet SR about the encounters for “the specific purpose

of establishing a pattern of lying about sexual events.”

     The military judge sustained the Government’s objection to

the admission of this evidence, but allowed the “members [to] be

informed that [Cadet SR’s] secret was information that if


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United States v. Smith, No. 08-0719/CG


revealed could have an adverse impact on her Coast Guard career,

including possibly disciplinary action under the UCMJ.”    The CCA

affirmed this decision.    Smith, 66 M.J. at 560-61.   Appellant

asserts that the military judge erred in not admitting the

sexual nature of Cadet SR’s indiscretion, and requests that we

set aside his convictions for extortion, sodomy, and indecent

acts.

                                  V.

        The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.”    U.S. Const. amend.

VI.   The right to confrontation includes the right of a military

accused to cross-examine adverse witnesses.    See United States

v. Clayton, 67 M.J. 283, 287 (C.A.A.F. 2009).     Uncovering and

presenting to court members “a witness’ motivation in testifying

is a proper and important function of the constitutionally

protected right of cross-examination.”    Davis v. Alaska, 415

U.S. 308, 316 (1974) (citation omitted).    “Through cross-

examination, an accused can ‘expose to the jury the facts from

which jurors . . . could appropriately draw inferences relating

to the reliability of the witness.’”    United States v. Collier,

67 M.J. 347, 352 (C.A.A.F. 2009) (quoting Davis, 415 U.S. at

318).




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United States v. Smith, No. 08-0719/CG


     Typically, we review a military judge’s decision to admit

or exclude evidence for an abuse of discretion.   See United

States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009).   We have

also applied the abuse of discretion standard to alleged

violations of the Sixth Amendment Confrontation Clause.    United

States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States

v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005).

     Appellant has the burden under M.R.E. 412 of establishing

his entitlement to any exception to the prohibition on the

admission of evidence “offered to prove that any alleged victim

engaged in other sexual conduct.”    United States v. Banker, 60

M.J. 216, 218, 223 (C.A.A.F. 2004) (citation omitted).    To

establish that the excluded evidence “would violate the

constitutional rights of the accused,” M.R.E. 412(b)(1)(C), an

accused must demonstrate that the evidence is relevant,

material, and favorable to his defense, “and thus whether it is

‘necessary.’”   Id. at 222 (quoting United States v. Williams, 37

M.J. 352, 361 (C.M.A. 1993)).   The term “‘favorable’” as used in

both Supreme Court and military precedent is synonymous with

“‘vital.’”   Id. (quoting United States v. Valenzuela-Bernal, 458

U.S. 858, 867 (1982); United States v. Dorsey, 16 M.J. 1, 8

(C.M.A. 1983)).

     Appellant contends that his inability to cross-examine

Cadet SR about the nature of the secret affected his convictions


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United States v. Smith, No. 08-0719/CG


for sodomy, extortion, and committing an indecent act.     We

conclude that further cross-examination of Cadet SR was not

“constitutionally required.”   Assuming arguendo that the exact

nature of the indiscretion -- that it involved consensual sexual

relations with an enlisted member -- was relevant, it was

neither material nor vital to Appellant’s defense.

     Testimony is material if it was “‘of consequence to the

determination of’ appellant’s guilt.”    Dorsey, 16 M.J. at 6

(quoting M.R.E. 401).   In determining whether evidence is of

consequence to the determination of Appellant’s guilt, we

“consider the importance of the issue for which the evidence was

offered in relation to the other issues in this case; the extent

to which this issue is in dispute; and the nature of other

evidence in the case pertaining to this issue.”   Id. (citation

omitted).    In this case, the evidence was offered on a

significant issue, the alleged victim’s credibility, which was

in dispute.   Nevertheless, knowledge of the exact nature of her

indiscretion in relation to the other issues in the case was not

important.    The military judge allowed Appellant to present a

fairly precise and plausible theory of bias, i.e., that she lied

to preserve a secret which “if revealed could have an adverse

impact on her Coast Guard career, including possibly

disciplinary action under the UCMJ.”    While Cadet SR’s

credibility was in contention, it is unclear why the lurid


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United States v. Smith, No. 08-0719/CG


nuances of her sexual past would have added much to Appellant’s

extant theory of fabrication.

     Nor is cross-examining Cadet SR about her sexual past

“‘vital’” under Banker, 60 M.J. at 222 (quoting Valenzuela-

Bernal, 458 U.S. at 867; Dorsey, 16 M.J. at 8)).    The “vital”

issue is not whether Cadet SR engaged in consensual sex with an

enlisted member or whether she lied to Appellant about it, but

rather whether she lied about an important issue that would

impeach her credibility.   Cadet SR admitted that she had been in

a “situation” that could have jeopardized her career and her

ranking as a cadet; that the “situation” was in violation of

cadet regulations and possibly a violation of the UCMJ; and that

she initially lied to Appellant about the “situation.”   All of

this was before the members.    The military judge did not abuse

his discretion; he provided Appellant what he was due under the

Confrontation Clause:   an opportunity to impeach the

complainant’s credibility.

     Finally, Appellant argues that Cadet SR’s past indiscretion

and her lies about it gave her similar motive to lie about her

relationship with Appellant.    We decline to embrace such a

broad, cumulative reading of M.R.E. 412 and its case law.      Even

according to Appellant’s own theory, Cadet SR lied about her

sexual past to protect herself, not a relationship with another,

unlike United States v. Williams, 37 M.J. 352 (C.M.A. 1993), or


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United States v. Smith, No. 08-0719/CG

Olden v. Kentucky, 488 U.S. 227 (1988).   This is not a case like

Collier in which the appellant asserted she was framed for

larceny by her gay lover after the breakup of the relationship.

67 M.J. at 351.   Nor does this case involve recent extramarital

sex or rejection and invective which might have caused the

victim to falsely claim rape, as in Dorsey, 16 M.J. at 6.     To

the extent Appellant might have tried to introduce some

nonsexual aspects of his theory of bias via M.R.E. 608(c), he

failed to frame or raise this issue as such at trial.

                                VI.

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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United States v. Smith, No. 08-0719/CG


     BAKER, Judge (concurring in the result):

     I concur in the result.   In my view, this case is governed

by United States v. Banker, 60 M.J. 216, 225 (C.A.A.F. 2004).

In Banker, we concluded that in the context of Military Rule of

Evidence (M.R.E.) 412, it is “within the judge’s discretion to

determine that such a cursory argument [does] not sufficiently

articulate how the testimony reasonably established a motive to

fabricate. . . . [It is] within the discretion of the military

judge to conclude that the offered testimony was not relevant.”

Id. at 225.   The burden is on the appellant to prove why the

M.R.E. 412 prohibition should be lifted.   Id.

     Appellant’s theory of admission was that SR, having lied to

Appellant about her prior sexual misconduct with an enlisted

member of the Coast Guard, demonstrated a propensity to lie

about her sex life generally and in particular to make false

allegations to law enforcement authorities to conceal her own

sexual misconduct.   Appellant argues that SR’s misconduct also

included engaging in consensual sexual activities with Appellant

in the Cadet barracks.   Therefore, Appellant argues, he had a

constitutional right to cross-examine SR about her prior sexual

conduct, notwithstanding the general prohibition on such

examination enshrined in M.R.E. 412.

     The problem for Appellant is that his theory of admission

is too far-fetched to pass constitutional and M.R.E. 403 muster.
United States v. Smith, No. 08-0719/CG


First, SR had no obligation to tell Appellant about her sexual

life and misconduct.    It does not logically follow that someone

who would lie to protect her privacy from a probing acquaintance

would lie to the police and commit perjury.   Second, it was SR

herself who reported her sexual contact with Appellant; this

cuts against Appellant’s theory that SR would lie to conceal her

own misconduct.   Third, to support this theory of admission the

members needed to know that SR had “lied” to Appellant about her

sexual misconduct; they did not need to know the details of the

prior sexual conduct.   This much the military judge permitted.

     In my view, Appellant might have a different appellate case

if he had argued to this Court that members needed to know the

nature of “the secret” in order to assess beyond a reasonable

doubt whether SR might succumb to pressure to protect the

secret.   This alternative theory was not the basis of

Appellant’s appeal before this Court.    In any event, it should

be noted that the military judge rejected this theory at trial,

his conclusions of law stating:

     While the importance of her secret would be relevant
     in this fashion, I do not think that the members would
     need to know the specifics. At the Article 39(a)
     session, the Government offered a generic formulation
     that would impress upon the members the seriousness of
     the secret. In essence, the members could be informed
     that the secret was information that if revealed could
     have an adverse impact on her Coast Guard career,
     including possibly disciplinary action under the UCMJ.




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United States v. Smith, No. 08-0719/CG


Reasonable judges might disagree on whether additional detail

about “the secret” was needed for members to fairly assess

whether this Coast Guard cadet was coerced into sexual conduct

to safeguard that secret.   But I am not persuaded that it was

plain error.   The military judge informed the members that the

secret exposed the witness to criminal liability and violated

academy regulations.   This is the very sort of balancing

military judges are supposed to conduct when they weigh an

accused’s rights and a victim’s privacy under M.R.E. 412.




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United States v. Smith, No. 08-0719/CG


     ERDMANN, Judge, with whom EFFRON, Chief Judge, joins

(concurring in part and dissenting in part):

     While I concur with the majority opinion as to the

jurisdictional issue raised by the Government, I respectfully

dissent from the majority’s conclusion as to the granted issue.

In a case where credibility of the complainant was fundamental,

the military judge prevented the defense from presenting to the

panel an explanation of the circumstances that would have

provided a motive for the complainant to make a false allegation

of rape.

                            Background

     Cadet Webster Smith was initially charged with twenty-two

specifications, the majority of which related to his sexual

relationships with female cadets at the United States Coast

Guard Academy.   Eleven of those charges were dismissed before

trial.   At a general court-martial composed of members, Smith

was found not guilty of six of the remaining charges.   Contrary

to his pleas, the members found him guilty of absence without

leave, attempted failure to obey a lawful order, sodomy,

extortion, and indecent assault.   The sodomy, extortion, and

indecent assault charges arose out of allegations made by SR, a

female cadet.

     In this appeal, Smith asserts that the military judge erred

by preventing him from fully cross-examining SR as to her motive
United States v. Smith, No. 08-0719/CG


and credibility in violation of his Sixth Amendment right to

confrontation and the “constitutionally required” exception to

Military Rule of Evidence (M.R.E.) 412.    M.R.E. 412(b)(1)(C).

At trial the defense filed a motion pursuant to M.R.E. 412

requesting permission to cross-examine SR about her alleged

statements to Smith concerning a prior sexual encounter she had

with an enlisted servicemember.    The factual basis for the

motion was summarized by the military judge in his findings of

fact:

             During the summer training program at the start
        of their first class year, Cadet Smith and [SR] were
        both assigned to patrol boats that moored at Station
        Little Creek. Both lived in barracks rooms at the
        Station. In May 2005, Cadet Smith approached [SR] to
        inform her that he was hearing rumors from the
        enlisted personnel assigned to the Station that she
        had a sexual encounter with an enlisted member
        assigned to the Station. [SR] told him that this was
        true, but that it was not a consensual encounter.
        Cadet Smith then informed the enlisted personnel who
        were spreading the rumors that the conduct was not
        consensual.

             On or about 19 October 2005, Cadet Smith again
        approached [SR]. He told her that he had remained in
        contact with some of the enlisted personnel assigned
        to Station Little Creek and that the rumors
        surrounding her sexual encounter with the enlisted man
        had continued. This time she told him that the
        incident with the enlisted man had been a consensual
        encounter and that the scope of the encounter had been
        greater than she had previously described.

             At the Article 32 hearing, [SR] merely stated
        that she had confided a secret to Cadet Smith. In her
        15 February 2006 statement, she merely stated that a
        situation occurred which led to rumors. On both
        occasions, she went on to state that on October 19th,


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United States v. Smith, No. 08-0719/CG


     she was concerned enough that Cadet Smith would expose
     this secret that she agreed to pose for a picture with
     him in which both of them were nude, and later that
     night allowed him to perform cunnilingus on her then
     she performed fellatio on him.

     In the defense motion, Smith argued that the evidence was

constitutionally required because “[t]he fact that the alleged

victim lied to Cadet Smith about her sexual activity and has

misled CGIS about that activity tends to show the alleged victim

as untruthful about her sexual conduct generally and

specifically has motive to lie about the specific sexual rumors

underlying the charge -- the very issue before the trier of

fact.”

     The Government opposed the admission of the evidence

arguing that the substance of SR’s secret was not relevant,

material, or vital to Smith’s defense.   In denying the motion

the military judge concluded that:   while the evidence was

relevant, the members did not need to know the specifics, but

could be provided with a non-specific summary;1 although the

evidence could show that SR had a propensity to bring false

accusations against men with whom she had consensual sexual

encounters, the evidence was not strong since the source of the

allegation, Smith, was biased; there was a significant

1
  The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”


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United States v. Smith, No. 08-0719/CG


difference between SR making a false allegation to Smith and

making a false allegation to law enforcement authorities; and

the probative value of the evidence was outweighed by the danger

of unfair prejudice.

     The United States Coast Guard Court of Criminal Appeals

affirmed the findings and sentence.   United States v. Smith, 66

M.J. 556, 563 (C.G. Ct. Crim. App. 2008).    We review a military

judge’s decision to admit or exclude evidence for an abuse of

discretion.   United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.

1995). In doing so, we review findings of fact under the clearly

erroneous standard and conclusions of law under the de novo

standard.   Id.

                             Discussion

     The evidence at issue was proffered to attack SR’s

credibility by establishing that she had earlier made a false

allegation of a nonconsensual sexual encounter to protect her

Coast Guard career.    Before addressing the M.R.E. 412 issue, it

is worth noting that there is some question as to whether M.R.E.

412 even applies to this type of evidence.    The Drafters’

Analysis to M.R.E. 412 states “[e]vidence of past false

complaints of sexual offenses by an alleged victim of a sexual

offense is not within the scope of this Rule and is not

objectionable when otherwise admissible.”    Manual for Courts-

Martial, United States, Analysis of the Military Rules of


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United States v. Smith, No. 08-0719/CG


Evidence app. 22 at A22-36 (2008 ed.).2   However, given the

posture of this case on appeal, and assuming that M.R.E. 412

does apply, the evidence is clearly admissible under the M.R.E.

412 analysis.

1. Objections Under M.R.E. 412

     “[A] criminal defendant states a violation of the

Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed to

show a prototypical form of bias on the part of the witness, and

thereby ‘to expose to the jury the facts from which jurors . . .

could appropriately draw inferences relating to the reliability

of the witness.’”   Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986) (citing Davis v. Alaska, 415 U.S. 308, 318 (1974)).

“[E]xposure of a witness’ motivation in testifying is a proper

and important function of the constitutionally protected right

of cross-examination.”   Id. at 678-79.   “The question is whether

‘[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.’”   United States v. Collier, 67 M.J. 347, 352



2
  See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
404.”).

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United States v. Smith, No. 08-0719/CG


(C.A.A.F. 2009) (brackets in original) (quoting Van Arsdall, 475

U.S. at 680).

      “M.R.E. 412 was intended to protect victims of sexual

offenses from the degrading and embarrassing disclosure of

intimate details of their private lives while preserving the

constitutional rights of the accused to present a defense.”

United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004).     There

are, however, three exceptions to the exclusionary provisions of

M.R.E. 412.    Smith relied on the third exception that requires

the admission of evidence “the exclusion of which would violate

the constitutional rights of the accused.”   M.R.E. 412(b)(1)(C).

“This exception addresses an accused’s Sixth Amendment right of

confrontation and Fifth Amendment right to a fair trial.”

Banker, 60 M.J. at 221 (citations omitted) (emphasis added).

Banker requires that “where evidence is offered pursuant to this

exception, it is important for defense counsel to detail an

accused’s theory of relevance and constitutional necessity.”    60

M.J. at 221.    Smith’s counsel did just that in this case.

2.   Relevance and Materiality

      In order to properly determine whether evidence is

admissible under the constitutionally required exception the

military judge must evaluate whether the proffered evidence is

relevant, material, and favorable to the defense.   Id. at 222.

“[T]he relevancy portion of this test is the same as that


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United States v. Smith, No. 08-0719/CG


employed for the other two exceptions of the rule,” which is

that “[e]vidence is relevant if it has ‘any tendency to make the

existence of any fact . . . more probable or less probable than

it would be without the evidence.’   M.R.E. 401.”   Id. at 222.

The proffered evidence could have impacted SR’s credibility by

allowing the defense to provide a commonsense explanation for SR

to give false testimony.   That is, when SR learned of the

investigation of Smith for alleged sexual offenses, she became

concerned that the investigation would produce allegations that

she had engaged in prohibited sexual activity3 with Smith in

their dormitory at the Coast Guard Academy, thereby jeopardizing

her own career.   Thus, she fabricated the charges against Smith

to protect her career, as she had in the past for the same

reason.   The military judge found that the evidence would be

relevant and I agree.

     Having found the evidence relevant, the next step for the

military judge was to determine whether the evidence was

“material and favorable to the accused’s defense, and thus

whether it is ‘necessary’.”   Id. at 222 (citing United States v.

Williams, 37 M.J. 352, 361 (C.M.A. 1993)).



3
  Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.
Id. at 4-5-05.a.4.

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United States v. Smith, No. 08-0719/CG


       In determining whether evidence is material, the
       military judge looks at “the importance of the issue
       for which the evidence was offered in relation to the
       other issues in this case; the extent to which this
       issue is in dispute; and the nature of the other
       evidence in the case pertaining to this issue.”

Id. (quoting United States v. Colon-Angueira, 16 M.J. 20, 26

(C.M.A. 1983)).

       There can be no dispute that testing the credibility of a

witness through cross-examination is crucial to the right of

confrontation.

       A more particular attack on the witness’ credibility
       is effected by means of cross-examination directed
       toward revealing possible biases, prejudices, or
       ulterior motives of the witness as they may relate
       directly to issues or personalities in the case at
       hand. The partiality of a witness is subject to
       exploration at trial, and is “always relevant as
       discrediting the witness and affecting the weight of
       his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
       (Chadbourn rev. 1970). We have recognized that the
       exposure of a witness’ motivation in testifying is a
       proper and important function of the constitutionally
       protected right of cross-examination.

Davis v. Alaska, 415 U.S. 308, 316 (1974) (citation omitted).

       As in United States v. Dorsey, 16 M.J. 1, 7 (C.M.A. 1983),

this was a “he said -- she said” case and for the charges at

issue in this appeal,4 the critical question for the members was

the credibility of the sole prosecution witness.   Evidence of a

motive to fabricate and that SR had alleged that an earlier

consensual sexual encounter was nonconsensual in an attempt to


4
    Sodomy, extortion, and indecent assault.

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United States v. Smith, No. 08-0719/CG


protect her career bears directly on SR’s credibility as to the

allegations she made against Smith.   It may have shown that SR

had a propensity to lie about consensual sexual encounters when

her career was on the line.   The materiality of this evidence is

not the “lurid nuances of the victim’s sexual past” as noted by

the majority, but rather the allegation that SR had previously

lied about a sexual encounter under similar circumstances.

3.   Balancing

      Once the military judge has determined that the proffered

evidence is relevant and material, the military judge must

undertake the M.R.E. 412 balancing test to determine if the

evidence is favorable to the accused’s defense.5   Banker, 60 M.J.

at 222.   The term favorable is synonymous with vital.   Id.

“[W]hen balancing the probative value of the evidence against

the danger of unfair prejudice under M.R.E. 412, the military

judge must consider . . . factors such as confusion of the

issues, misleading the members, undue delay, waste of time,


5
  Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).

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United States v. Smith, No. 08-0719/CG

needless presentation of cumulative evidence, [and] also

prejudice to the victim’s legitimate privacy interests.”      Id. at

223.   The M.R.E. 412 balancing test weighs in Smith’s favor.

Under the circumstances of this case, any risk of confusion of

the issues, misleading the members, wasting time, or presenting

cumulative evidence was minimal and is outweighed by the high

probative value of this evidence.

       In Dorsey the court found evidence favorable when it

“undermined the credibility of the sole prosecution witness who

directly testified to appellant’s guilt of the charged offense.”

Dorsey, 16 M.J. at 7.    In a similar fashion, admission of a

prior false allegation of a nonconsensual sexual encounter could

have undermined the credibility of SR, the only witness who

testified against Smith on the extortion, sodomy, and indecent

assault charges.

       While the evidence of SR’s earlier allegation of a false

nonconsensual sexual encounter and her subsequent admission that

the encounter was consensual would have impacted her privacy

interests, withholding this constitutionally required evidence

from the panel deprived Smith of his best opportunity to provide

a motive for SR’s allegations and to challenge her credibility.

The fact that the military judge allowed the panel to hear that

SR had a secret that, if revealed could have an adverse impact

on her Coast Guard career, including possibly disciplinary


                                 10
United States v. Smith, No. 08-0719/CG

action under the UCMJ, was simply not sufficient.    With this

limited information about SR’s secret, the members were left to

speculate whether the secret was a minor disciplinary infraction

or a more serious charge, but they had no idea that the

proffered evidence directly implicated SR’s motive and

credibility.6

     In Collier this court found the military judge erred in

limiting cross-examination of the complaining witness for

possible bias.   Collier, 67 M.J. at 349.    There, the defendant

attempted to establish bias by presenting evidence of the

existence of a romantic relationship that ended badly between

the accused and the complaining witness.    Id. at 351.   The

military judge only allowed cross-examination as to the “breakup

of a friendship.”   Id. at 351-52.    This court found that there

was a qualitative difference between the two situations and if

the members had been shown evidence of the romantic relationship

they might have had a significantly different impression of the

accusing witness’ credibility.   Id. at 352, 353.    Similarly,

there is a qualitative difference between an undisclosed


6
  Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”

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United States v. Smith, No. 08-0719/CG

situation that “could have had an adverse impact on [SR’s] Coast

Guard career” and an allegation that SR had previously made a

false allegation of a nonconsensual sexual encounter to protect

her career.

     While the military judge found that the evidence was not

strong because it came from Smith, who had an obvious bias, it

is well established that “[t]he weight and credibility of the .

. . witness are matters for the members alone to decide.”

United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing

United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)).     The

court in Banker noted that the role of the military judge is to

assure that the evidence meets the usual evidentiary standards.

Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d

806, 812 (10th Cir. 1995)).   The court in Platero went on to

say, “when the Judge decides whether or not a defense is true or

false and decides that on the basis of the credibility of the

witnesses, the Judge is doing what the jury is supposed to do in

a serious criminal case covered by the Sixth Amendment.”

Platero, 72 F.3d at 812.

     Smith had a commonsense explanation for SR’s claim that the

sexual activity was nonconsensual and the military judge’s

ruling prevented the members from considering this theory.    The

alleged false accusation was close in time to the allegation

made against Smith, both allegations involved military members


                                12
United States v. Smith, No. 08-0719/CG

and both situations presented a motive for SR to lie about the

consensual nature of her sexual activities to protect her

career.   Putting aside the fact that M.R.E. 412 may not even

apply to this type of evidence, I would conclude that the

evidence should have been admitted under M.R.E. 412.   I would

further find that the error was not harmless beyond a reasonable

doubt as it essentially deprived Smith of his best defense and

“the excluded evidence may have tipped the credibility balance

in [Smith’s] favor.”   Moss, 63 M.J. at 239.

     I would reverse the decision of the United States Coast

Guard Court of Criminal Appeals and set aside the findings and

sentence for Additional Charge I, Specification 1 of Additional

Charge II, and Additional Charge III, and remand the case for

further proceedings, if any.




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