IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ) WRIT-APPEAL PETITION FOR REVIEW OF ) THE NAVY-MARINE

CORPS COURT OF In Re ) CRIMINAL APPEALS DECISION ON ) APPLICATION FOR EXTRODINARY RELIEF Edwin A Ehlers II, USMC, ) ) Appellant ) ) v. ) ) Crim.App. Misc. Dkt. No. United States, ) ) 200800190 Appellee ) ) ) ________________________________________________________________

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Preamble The Appellant hereby prays that this court grant a de novo review of both the legal and factual sufficiency of the sentence and conviction. In the event that this court concludes the evidence presented by the Government at the court-martial fails to meet the standard articulation required for conviction and that the Appellant shows evidence to the contrary of the Governments case-in-chief, we ask this court to proceed in an independent determination of whether all of the evidence, taken together, is legally and factually sufficient to support the conviction. If this court is not convinced that the Governments evidence constitutes proof beyond a reasonable doubt of each required element, we ask this court to set aside the findings and

sentence and release Appellant from incarceration.1 We intend show that Appellant has been confined under a void conviction and therefore under a sentence not authorized by law2 STATEMENT OF STATUTORY JURISDICTION All Writs Act, 28 U.S.C. 1651(a), authorizes this court to grant extraordinary relief in appropriate cases. This Act does not enlarge the courts jurisdiction; rather, relief is appropriate only when in aid of {this courts} existing statutory jurisdiction.3 The issuance of a writ is a drastic remedy that should be used only on truly extraordinary situations. 4 The petitioner must show that he has a clear and indisputable right to the extraordinary relief requested.5 Once a conviction is final upon direct review, this court may issue a writ if a petitioner seeks to collaterally attack an action that was taken within the subject matter jurisdiction of the military justice system, such as the finding or sentence of a court-martial.6 Because this Appellants claim is constitutionally grounded, this court applies both the scope and standard of review adopted in Loving.7 Therefore, this court must determine whether the petitioners trial resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the {prior} proceeding. Non-constitutional claims...can be raised on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice...or if the alleged error

United States v. Washington, 57 M.J. 394, 399-400 (C.A.A.F. 2004), United States v. Reed, 51 M.J. 559, 561-62 (N.M.Crim.Ct.App. 1999), affd, 54 M.J. (C.A.A.F. 2000) 2 United States v. Barren, 172, F3d 1153, 1158 (9th Cir. 1999) 3 Denedo v. United States, 66 M.J. 114, 120 (C.A.A.F. 2008) 4 Aziz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R. 13) (citations omitted). 5 Denedo, 66 M.J. at 126 (citing Cheney v. United States Dist. Ct. 542 U.S. 367, 381 (2004)). 6 Id. At 125. 7 Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006)
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produced a proceeding inconsistent with the rudimentary demands of fair procedure.8 An extraordinary writ can lie for factual, constitutional, and fundamental errors, to include the impact of new law on a decision.9 An extraordinary writ should only be used to correct errors of the most fundamental character.10 Because this petition raises a claim concerning the validity of the findings and/or sentence of the petitioners court-martial, this court posses the jurisdiction to entertain the petition for extraordinary relief.11 History of the Case Tried on 27 April, 17 May, 21 June, 31 July, and 20-21 August 2007. Appellant was tried at a general court-martial consisting of a judge alone at Camp Pendleton, CA. The charges were as follows: Charge I, Art 125 Spec. 1 Did, between on or about 1 Aug 02 and on or about Oct 03, commit sodomy with H. Skovranko, a child under the age of 12 years, by force and without consent of H. Skovranko. Appellant was found Guilty Charge II, Art 134 Spec. 1 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said accused, by exposing his penis while masturbating and ejaculating in front of the said H. A. Skovranko w/ the intent to gratify the sexual desires of the accused. Appellant was found Guilty. Spec. 2 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said accused, by slapping her on the buttocks while masturbating w/ the intent to
8

Reed v. Parley, 512 U.S. 339, 350, 354, 129 L.Ed.2d 277, 114 S.Ct. 2291 (1994) 9 Loving v. United States, 62 M.J. 235, 252 (C.A.A.F. 2005)(citing 2 Childress & Davis, Federal Standards of Review 13.01 (2nd ed. 1999)); see also Garrett v. Lowe, 39 M.J. 293, 295 (C.M.A. 1994). 10 Loving, 62 M.J. at 253 (citations omitted). 11 Denedo, 66 M.J. at 120.
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gratify the sexual desires of the accused. Appellant was found Not Guilty but Guilty of the lesser included offence of Assault Consummated by a battery Art 128 Spec. 3 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with H.A. Skovranko, a female under 6 yrs of age, not the wife of the said accused, by inserting him finger into the anus of the said H. A. Skovranko w/the intent to gratify sexual desires of the accused. Appellant was found Not Guilty. Spec. 4 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with H.A. Skovranko, a female child under 6 years of age, not the wife of the said accused, by pinching the buttocks of the said H.A. Skovranko w/intent to gratify the sexual desires of the accused. Appellant was found Not Guilty. Additional Charge I, Article 134 Spec. 1 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with H.A. Skovranko, a female under 6 years of age, not the wife of the said accused, by exposing pornographic images to the said H. A. Skovranko w/intent to gratify the sexual desires of the accused. Appellant was found Not Guilty. Additional Charge II, Article 134 Spec. 1 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, take indecent liberties with Samuel E. Hester, a male under 16 yrs of age, not the spouse of the said accused, by exposing pornographic images to the said S. E. Hester w/intent to appeal to the sexual desires of the accused. Appellant was found Not Guilty. Spec. 2 Did, between on or about 1 Aug 02 and on or about 1 Oct 03, wrongfully communicate to H.A. Skovranko, a threat to kick and punch her as she told P.J. Skovranko, Stacey Skovranko, Gloria Ehlers, or Randi J. Hester how accused had touched her. Appellant was found Not Guilty. On August 21, 2007 was sentenced to confinement for 25 years, reduction in pay grade to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

Convening Authority acted on February 19, 2008 and approved the sentence, with exception to the discharge, and reduced the sentence by 6 years as a matter for clemency. Navy-Marine Corps of Criminal Appeals acted in June 2009 and approved the sentence, but Appellate Judge J.A. Maksym dissented in part because as he believed, the child had been coached by her parents to a degree that would make her testimony unreliable and that the Government is Appellants case violated his speed trial rights without explanation for the delay from the time of the preferral of charges to the actual trial on the merits. Navy-Marine Corps Court of Criminal Appeals acted again in December 2011 when a writ of Habeas Corpus was submitted. The writ was denied on December 27, 2011 before the court even acknowledged having received the writ. Relief Sought It is plainly obvious that Appellant was denied a fair trial because of the facts discovered before, during and after the court-martial. The Government is required to follow their own policies and regulations yet they continually fail to do so. The conduct of the NCIS agents who conducted the investigation and interrogation is shocking. Once a person subject to an interrogation raises his desire to speak with an attorney, all questioning must stop and he must be provided the opportunity to obtain one. Following such a statement the interrogators must not make any statement other than yes and provide the suspect the opportunity to speak with counsel. Special Agent Eric Muelenberg refused to comply with this request made by Appellant on May 25, 2005 and the military judge, LtCol Brian Kasprzyk acknowledged the statement made by Special Agent Muelenberg at the end of the trial. An explanation of Appellants rights are of no value if the agent and military judge then fail to honor those rights and the military judge abused his authority as the finder of fact, when he appeared to become a second prosecutor in this case. The practice of ignoring policies and procedures continued throughout the rest of the investigation, trial and beyond. NCIS agents admitted that there were others accused in this crime but they were never questioned and at the Article 32 hearing in February 2007 the Government introduced into evidence the results of the polygraph and opinion of the examiner which is in violation of Mil. R. Evid. 707(a).
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The Governments failure is further exacerbated by the lack of proof behind Petty Officer Paul Skovrankos (father of the alleged victim) story. Hospital records reflect that HS was never at the naval hospital in the month of June 2004, so therefore she could not have been turned away after her father signed her into the emergency room and then signed her back out several hours later. It is against federal law and regulations to turn a child away who has been brought in under suspicion of sexual assault according to 18 U.S.C. 2257 and C.A.P.T.A., 42 U.S.C. 5101, et. seq. NCIS pursued these charges with tremendous vigor in the hopes of finally getting some evidence of wrongdoing by Appellant and despite the existence of exculpatory evidence in the Governments possession in the form of NCIS case notes; the Government pursued its case in the apparent hope that the defense would not find it after the trial on merits. The Government withheld an NCIS report of investigation dated August 1, 2006, which states that Appellant gave no confession during both interrogations, thereby contradicting NCIS Special Agent Eric Muelenbergs testimony. The Supreme Court imposes the duty on all prosecutors to immediately turn over all evidence that tends to negate the guilt of the accused as soon as that evidence comes into their possession per Brady. No request or demand for production is required by the defense. Many of the actions discussed above had the consequence of delaying the case to the point where prosecution became a legal impossibility under the Speedy Trial protections of the Uniform Code of Military Justice, the Constitution and the Rules for Court-Martial, yet the trial was still held on August 21, 2007three years after the first report to NCIS in June 2004, and first preferral of charges. Appellant was still convicted by the word of an NCIS agent who was later found to be untruthful, a child who was witnessed to having been coached by her mother and the introduction of evidence barred by the Military Rules of Evidence. The standard this court must apply requires them first to determine whether a factual dispute exists, which we have brought to the attention of this court numerous errors of law and second, to determine whether the record conclusively shows that the habeas writ is not entitled relief. For the above reasons we are asking this court for relief and pray that the court sees that at this time, because the
6

Appellant has been so prejudiced by the military justice system, the only action able to correct this manifest injustice is to vacate the sentence and order the immediate release of the Appellant from incarceration. In the event that this court does not provide the warranted relief requested above, we ask this court to order a new trial so Appellant may be afforded the opportunity to present his defense against the allegations to an impartial finder of fact, who will conduct their duty according to law. Issues Presented I. WHETHER AN ARTICLE 134 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011)
A. WHETHER THE LOWER COURT MISAPPLIED UNITED

STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE II. WHETHER APPELLANTS SIXTH AMENDMENT SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE GOVERNMENT FAILED TO BRING APPELLANT TO TRIAL WITHIN THE 120 RULE FOUND UNDER R.C.M. 707(a) MAUNAL FOR COURTS-MARTIAL 2002 ED. A. WHETHER APPELLANTS FIFTH AMENDMENT RIGHTS TO TIMELY POST TRIAL REVIEW WERE VIOLATED WHEN 182 DAYS PASSED BETWEEN THE COURT-MARTIAL AND ACTION BY THE CONVENING AUTHORITY III. WHETHER THE MILITARY JUDGE ABUSED HIS AUTHORITY AS THE FINDER OF FACT BY ALLOWING TESTIMONY OF SPECIAL AGENT ERIC MEUELENBERG, NCIS, TO BE IGNORED WHEN SPECIAL AGENT MUELENBERG ADMITTED TO VIOLATING APPELLANTS MIRANDA RIGHTS

A. WHETHER SPECIAL AGENT ERIC MUELENBERGS ADMISSION OF TAMPERING WITH EVIDENCE VIOLATES APPELLANTS CONSTITUTIONAL RIGHTS IV. WHETHER THE GOVERNMENT WITHHELD EXCULPATORY EVIDENCE IN ITS POSSESSION TO TAINT THE COURT-MARTIAL AND DENY APPELLANT A FAIR TRIAL, IN VIOLATION OF SUPREME COURTS DECISION IN BRADY v. MARYLAND AND SMITH V. CAIN WHETHER DETAILED DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL WHERE DETAILED DEFENSE COUNSEL FAILED TO PRESENT A DEFENSE IN APPELLANTS CASE, FAILED TO OBJECT TO GOVERNMENT VOUCHING FOR HSs CREDIBILITY, FAILED MOTION THE COURT TO DISMISS ALL CHARGES ON SPEEDY TRIAL GROUNDS AND FAILED TO OBJECT TO THE INTRODUCTION OF EVIDENCE BARRED BY MIL. R. EVID. 707(a) WHETHER THE MILITARY JUDGE ABUSED HIS AUTHORITY BY NOT DISMISSING THE CHARGES WHEN THE ALLEGED VICTIM, HS DENIED MAKING INCONSISTENT STATEMENTS

V.

VI.

VII. WHETHER THE JUDGES FINDINGS AT THE COURT-MARTIAL ARE AMBIGIOUS AND THEREFORE NOT AUTHORIZED BY LAW Statement of Facts On June 2, 2004 HS came forward with allegations that someone had touched her but refused to give a name. According to Randi Hester, the daughter of Appellants ex-wife, HS would only say that he touched her. Later that morning Mrs. Stacey Skovranko (mother of the alleged victim) was told by Randi Hester and HS that someone had touched HS. According to Randi Hester, HS repeated the same story she had told her earlier, still not naming the person who allegedly did this to her. When Mrs. Stacey Skovranko asked who did this to her, HS refused to provide anyones name. Mrs. Stacey Skovranko asked HS if it was the Appellant that did this to her and HS agreed with her mothers direction that it was Appellant who committed this act.12
12

See attachment 1; Also AE XI pg 2 of 12

8

Later that afternoon, Petty Officer Skovranko, the father of the alleged victim, was called at work by his wife Mrs. Stacey Skovranko. Mrs. Skovranko told Petty Officer Skovranko that their daughter, HS said she was sexually assaulted by Appellant. (RECALL: Randi Hester stated to NCIS that HS never said who did this to her until Mrs. Skovranko told HS it was Appellant). Petty Officer Skovranko came home from work and proceeded to question HS about her allegations. Around 4:45pm, several hours after returning home, Petty Officer Paul Skovranko took HS to the Beaufort Naval Hospital where he sought treatment for HS claims of sexual assault. Petty Officer Skovranko stated he spoke to the officer of the day, security and several emergency room staff members about HS stating she had been sexually assaulted. Petty Officer Paul Skovranko was told by the staff members that there was nothing the hospital could do because of the time that had passed. Petty Officer Skovranko stated he signed HS into the emergency room, was escorted to an exam room where her vitals were taken and both were left alone there for several hours without a doctor coming into examine her. While waiting, Petty Officer Skovranko said that HS told him that Appellant did not do anything to her, and he became frustrated and signed her out of the emergency room and took HS home.13 Petty Officer Skovranko was never at the hospital in June 2004 nor was the alleged victim, HS. Lt Adam K. Burch, under a request through the Family Advocacy Program (DoDD 6400.1) aboard Parris Island, SC, stated in an e-mail to Appellants former attorney that the child was NEVER there in the month of June 2004.14 June 3, 2004 Petty Officer Skovranko contacted NCIS to report the allegations HS allegedly made against Appellant. Petty Officer Skovranko and Mrs. Skovranko went to the Parris Island NCIS building and each gave a sworn statement to NCIS regarding the allegations. June 9, 2004 HS did a forensic interview with NCIS Special Agent Gauthier at the Hope Cottage Rape Crisis Center in Beaufort, SC. During her interview HS told NCIS Agent Gauthier that Gloria Ehlers (ex-wife of the accused) and a boy named James witnessed
13 14

See attachment 2 See attachment 3

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the alleged sexual assault. HS told NCIS Special Agent Gauthier that someone told her to tell what happened to her, and when questioned, she could not remember who told her to say what he did. At the end of the interview HS thanked the NCIS Agent Gauthier for telling me what he did.15 June 24, 2004 Randi Hester and her mother, Gloria Ehlers, were interviewed by two NCIS agents at their home. Randi Hester told the NCIS agents that after she spoke to HS, Mrs. Skovranko asked HS who did this to her, but HS refused to provide the name. Randi Hester said that Mrs. Skovranko told Appellants name to the alleged victim as the person who committed this crime. Gloria Ehlers was interviewed at the same time as Randi Hester in June 2004. Gloria was asked several things regarding Appellant but was never questioned if she witnessed the alleged sexual assault.16 NCIS agents were aware of the allegations against Gloria Ehlers made by HS as having been a witness to this alleged act on June 9, 2004 when they interviewed her on June 24, 2004. April 4, 2005 Appellant went to the NCIS building aboard Camp Pendleton and was interviewed by Special Agent Art Spafford, the case manager and Special Agent Laura Merz. Appellant claimed his innocence with regards to the allegations against him and Appellant volunteered to take a polygraph examination the following month. May 25, 2005 Appellant was polygraphed and interviewed by Special Agent Eric Muelenberg. Special Agent Muelenberg wrote in his Report of Investigation (ROI) that Appellant admitted to touching HS and committing other lewd acts. Special Agent Muelenberg noted that Appellant admitted to touching a cousin Hannah when he was 12 years old and she was 6 years old. During the alleged confessions Special Agent Muelenberg did not ask for pretrial confinement nor did he video tape the admission or get a signed confession. The Article 32 hearing was conducted in February 2007; nearly three years after the allegations were first reported. On August 20, 2007, Gloria Ehlers was asked at trial if she witnessed HS being sexually assaulted by Appellant because HS had accused her of being in room where it allegedly took place. Gloria Ehlers stated no, she did not witness anything and if HS said that then she would be wrong. (Record at 269-270)
15 16

AE VII, Pg(s) 11 of 16; 12 of 16 G.E. 8 , Pgs 1-5

10

Gloria Ehlers also admitted that during the timeframe of this alleged incident, her brother James Johnson lived at the home. (Record at 271) HS stated later in her testimony that James Johnson looked like Appellant and was at the home that Appellant resided in. (Record at 351-352) Mrs. Skovrankos testimony was impeached at trial and she was found to be untruthful by the judge with regards to her statement that Appellant had babysat HS in October 2002 because Appellant was not living at the home from August 2002-November 2002. (Record at 328) Petty Officer Skovranko told the court that he took his daughter to the Beaufort Naval Hospital and was denied treatment. He also admitted to questioning his daughter alone the day she came forward with the allegations, but according to hospital records, he was never at the hospital in month of June 2004 with HS seeking any kind of treatment. (Record at G.E. 2) Special Agent Muelenberg stated at court that Appellant only made the outline of the home but that he (Special Agent Muelenberg) had filled in all the details of the home, an admission of tampering with evidence. (Record at 284; 294) Special Agent Muelenberg also admitted that there was a video camera available in the room when he interrogated Appellant but did not utilize the camera to solidify the alleged confession; he stated that his word should be good enough. (Record at 293) A NCIS report of investigation dated 8/1/06, that was withheld by the Government shows that there was NO CONFESSION to the allegations against Appellant.17 This NCIS document undermines Special Agent Muelenbergs credibility while testifying. Appellant has sought relief on direct appeal, which were all denied. Appellant again sought relief at the Navy-Marine Corps Court of Criminal Appeals under a habeas writ and was denied all relief on December 27, 2011 before the court even acknowledged receiving it. Reasons Why Writ Should Issue The Navy-Marine Corps Court of Criminal Appeals erred in its decision to deny relief based on the previous holdings of this

17

See attachment 4
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Court and the Supreme Court, but by also constitutionally guarded rights of the Appellant. I.

ignoring

the

WHETHER AN ARTICLE 134 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZPONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Appellants charges and specifications under Article 134 fail to state an offense because they do not allege, either expressly or by implication, the terminal element required by Article 134, Uniform Code of Military Justice (UCMJ) 2006 ed. To establish a violation of Article 134, UCMJ, 10 U.S.C. 934 (2006 ed.), the Government must prove beyond a reasonable doubt that the accused engaged in certain conduct and that the conduct satisfied at least one of the three listed criteria. The criteria commonly referred to as the terminal element of Article 134 and the Government must prove that at least one of the articles three clauses has been met: that the accuseds conduct was (1) to the prejudice of good order and discipline, (2) of nature to bring discredit upon the armed forces, or (3) a crime {or} offense is not capital.18 The three clauses of Article 134 constitute three distinct and separate parts.19 An accused must be given notice as to which clause or clauses he must defend against. As this court explained in the context of a guilty plea: for the purposes of Article 134, UCMJ, it is important for the accused to know whether the offense in question is a crime or offense not capital under clause 3, a disorder or neglect under clause 1, conduct proscribed under clause 2, or all three.20 This requirement was based on fair notice. Principles of fair notice require the same in contested cases. Because the terminal element was not expressly alleged, the courts task is to determine whether the terminal element was necessarily implied.21 To do so, this court must interpret the
18

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) United States v. Frantz, 2 C.M.A. 161, 163, 7 C.M.R. 37, 3 (1953) 20 Medina, 66 M.J. at 26 21 See R.C.M. 307(c)(3)
19

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text of the charge and specification. In contested cases, when the charge and specification are first challenged at trial, this court reads the wording more narrowly and will only adopt interpretations that hew closely to the plain text.22 Following the example in Fosler, Appellants Charge II Specification I & II do not provide a basis, individually or together, to find that the charge and specification necessarily implied in the terminal element. An allegation of taking indecent liberties cannot imply the terminal element. These components of the charge and specification do not imply the terminal element alone or when combined and no article of the UCMJ states that the terminal element may be omitted. The Government must allege every element expressly or by necessary implication, including the terminal element. The Government did not expressly allege the terminal element in this case and because Appellant made an R.C.M. 917 motion for a finding of not guilty at trial, this court must review the language of the charge and specification more narrowly than at later stages.23 Under principles of stare decisis, the court examines intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law.24 The Supreme Court has explained that stare decisis cannot possibly be controlling when...the decision in question has been proven manifestly erroneous, and its underpinnings eroded, by 25 subsequent decisions of the {Supreme} Court. The jurisprudence of the Supreme Court and this Court has changed. The Supreme Court clarified whether the terminal element was required to be included in the offence by requiring the elements test.26 After some delay, C.A.A.F. applied that law to courts-martial, holding that constitutional notice requirements no longer permitted such broad implication of the terminal element.27 The mandates of constitutional notice requirements superseded the long-standing practice of implying Article 134 in other enumerated offenses, thus substantially limiting the extent to which the terminal element can permissibly be implied. Therefore, because an accused must be
22
23

United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986) Cf. Watkins, 21 M.J. ar 209-10. 24 United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995) 25 United States v. Gaudin, 515 U.S. 506, 521 (1995). 26 Schmuck v. United States, 489 U.S. at 716-21 (1989) 27 United States v. Medina, 66 M.J. at 24-25 (C.A.A.F. 2008)
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notified which of the three clauses he must defend against, the terminal element must be set forth in the charge and specification. Further, the Navy-Marine Corps Court of Appeals has repeatedly denied any and all claims arising from this Courts decision in Fosler. The lower courts prefer to send these cases to this Court for decision, when it is clearly within their jurisdiction to act on the cases at hand. The Navy-Marine Corps Court of Criminal Appeals is continually making an inexcusable delay for any Appellants seeking relief in light of this courts decision in Fosler. Because of the Governments failure to state at least one of the three elements, we are asking this court to uphold their previous decision in Fosler for Appellants writ. A. WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE The defense given by the Navy-Marine Corps Court of Criminal Appeals for denying the Appellants habeas writ questioning the legality of his charges in light of United States v. Fosler, is that it has no retroactive application. The Navy-Marine Corps Court of Criminal Appeals applies the Supreme Courts holdings in Teague v. Lane, citing that the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place. Which follows along with this Courts holding in Fosler, since the terminal element issue cited in Fosler was from the Uniform Code of Military Justice (UCMJ) 2006 edition. Only one year prior to Appellants conviction in August 2007. I am sure that the Navy-Marine Corps Court of Criminal Appeals is aware of this fact, yet still chose to ignore that at the time of conviction, the constitutional standards still REQUIRED at least one of the three terminal elements to be present in the charges against Appellant and therefore should not have been denied. The Navy-Marine Corps Court of Criminal Appeals has also stated in their denial, that the Supreme Court has identified two exceptions where a new rule may have retroactive application. The first is where a new rule places private individual conduct beyond the power of criminal law-making authority, which does
14

not apply to Appellants case; and the second where a rule articulates fundamental procedures without which the chances for accurate conviction are severely diminished (citing Loving). The second exception applies in Appellants case. At the time of Appellants conviction, it was required for at least one of three elements to be present in order to convict someone under Article 134, UCMJ 2006 ed. You cannot gain an accurate (and legal) conviction, unless one of the elements has been satisfied. The Government failed to do so and Appellant is now incarcerated in violation of this Courts holding in Loving v. United States and United States v. Fosler. II. WHETHER APPELLANTS SIXTH AMENDMENT SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE GOVERNMENT FAILED TO BRING APPELLANT TO TRIAL WITHIN THE 120 RULE FOUND UNDER R.C.M. 707(a) MAUNAL FOR COURTSMARTIAL 2002 ED.

Under the Sixth Amendment, defendants in criminal cases have the right to a speedy trial. Upon appeal, Judge Maksym at the NavyMarine Corps Court of Criminal Appeals stated in his dissent: I dissent. As a matter of moral conscience and mindful of my oath as a jurist, I cannot bring myself to join my learned brethren in affirming the sodomy conviction below. Clearly, reasonable minds can differ in determining whether or not the Government has satisfied its burden of proof based upon the facts as they have been placed before us. My marked reservations are, in the main, prompted by the significant delay opaquely portrayed in the record of the nearly three year interregnum between the first statement by the minor alleged victim and a trial on the merits. Record at 319-20. These massive delays shroud the entire proceedings with the specter of reasonable doubt. Any explanation from the United States as to the rationale for these delays would have permitted me to place them in context. No such explanation exists.28 This delay is a violation of R.C.M. 707(a), Manual for Courtsmartial (ed. 2002) where it clearly states that the accused will be brought to trial within 120 days.
28

See Attachment 5
15

The U.S. Supreme Court laid down a four-part ad hoc balancing test for determining whether the defendant's speedy trial right has been violated in the case of Barker v. Wingo.29 The Court has held that, since the delayed trial itself is the action which violates the defendant's rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place. The Navy-Marine Corps Court of Criminal Appeals has ignored the facts, as presented to them by one of their own judges who previously made his dissent of this case in 2009. Although they chose not to even acknowledge the dissent in their denial of the habeas writ, which was included in the pleadings submitted to the court, it is still a question of law that is of utmost importance since Appellate Judge Maksym acknowledged that he believed the Government violated Appellants Sixth Amendment rights to a speedy trial. In Strunk 30, the Supreme Court ruled that if the reviewing court finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. If the lower federal courts unquestionably rely on and follow Supreme Court decisions in their own rulings, the Navy-Marine Corps Court of Appeals have failed. The Supreme Court reiterated this requirement in Hutto v. Davis.31 The United States legal system relies on the principle that a courts decision on a case should be consistent with previous judicial rulings. If courts routinely ignored how similar cases have been decided in the past, they would create confusion and uncertainty about what is lawful and what is not. The Navy-Marine Corps Court of Criminal Appeals rationalizes their processes by claiming that there is nothing in the petitioners submissions to suggest that the delay at any stage in any way prejudiced him. The Appellants service ended in October 2005, where he was going to make the decision to either separate from service or re-enlist. Because of the delay in bringing Appellant to trial within the prescribed time limits
29 30

Barker v. Wingo, 407 U.S. 514 (1972) Strunk v. United States, 412 U.S. 434 (1973) 31 Unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be. Hutto v. Davis, 370 U.S. 256 (1982)
16

set forth in R.C.M. 707(a), Manual for Courts-martial, of 120 days from the first preferral of charges, Appellant was not allowed to separate from service at the end of his enlistment nor test for promotion. Appellants enlistment was extended indefinitely pending the outcome of the investigation and any court-martial because of the legal hold placed on him. Appellant was virtually held prisoner without good cause, by the Governments delay to bring him to trial within 120 days of the preferral of charges. Appellant was not formally charged until the article 32 investigation on Feb 14, 2007, nearly 3 years after the first report to NCIS and first preferral of charges. After the first preferral of charges in June 2004, which were retracted in August 2004 since Appellant had deployed with his unit to Fallujah, Iraq, they were then preferred for trial a second time in late February 2005. February 2005 to August 2007 is obviously more than the 120 day time allotted to bring the accused before the courts. The Government has no explanation as to why there was such a significant delay, nor do they deny the delay either. They simply skirt the issue hoping that avoidance with allow them to escape negative backlash and thus making sure that Appellant receives no warranted relief. Scrutinizing certain acts pre-indictment or pre-charging would not only raise the question of the legality of the conviction, but also question the entire judicial proceedings thereafter. According to R.C.M. 707, if there is a violation of the accuseds Speedy Trial rights, the military judge was required to dismiss the charges with or without prejudice32. LtCol Brian Kasprzyk, the military judge at Appellants court-martial, failed to do so. The military judge may only dismiss the charges with or without prejudice if the speedy trial violation did not reach constitutional magnitude. If, however, a

32

R.C.M. 707(d) contains a list of factors for the judge to consider in deciding whether dismissal should be with prejudice. If, however, a violation raises to a constitutional level, the rule requires dismissal with prejudice. United States v. Strunk, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). In this regard, R.C.M. 707 now parallels the Federal Speedy Trial Act. See 18 U.S.C. 3162 (1994). For an example of the application of R.C.M. 707(d), see United States v. Edmond, 41 M.J. 419 (1995), vacated on other grounds, 516 U.S. 802 (1995).
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violation rises to a constitutional level, the rules require a dismissal with prejudice. Appellant was not able to re-enlist, gain promotion nor separate from service. Appellant was forced to remain on active duty while his family was unable to move onto the base housing because he was denied re-enlistment. They were further unable to afford the apartment they resided in off base and therefore Mrs. Angela Ehlers and the couples children moved back to Mrs. Ehlers home state of Minnesota in June 2006. Appellant and his wife were forced to maintain separate households, only visiting each other five times over the next 14 months which expenses exceeded more than $20,000. III. WHETHER THE MILITARY JUDGE ABUSED HIS AUTHORITY AS THE FINDER OF FACT BY ALLOWING TESTIMONY OF SPECIAL AGENT ERIC MEUELENBERG, NCIS, TO BE IGNORED WHEN SPECIAL AGENT MUELENBERG ADMITTED TO VIOLATING APPELLANTS MIRANDA RIGHTS Special Agent Eric Muelenberg, NCIS Camp Pendleton, made a tactic admission while testifying at trial, that during the interrogation, Appellant invoked his rights to consult with an attorney. Special Agent Muelenberg casually mentioned that he did not terminate the interview at the time of the request but continued to interrogate Appellant until the duty driver arrived. The military judge made reference to the testimony at the end of the trial. The statement is as follows: Prior to announcing the findings of this court, I want to make clear that I did not consider the testimony of Special Agent Muelenberg with regard to Sergeant Ehlers electing to terminate the interview and ask for a lawyer during the interrogation on 25 May 2005. (Record at 378) The actual statement made by Special Agent Muelenberg does not appear in any copy of the record of trial yet, by not considering the statement made by Special Agent Muelenberg, the judge has violated Appellants Art 31, UCMJ and Miranda rights and has also abused his authority as the finder of fact under RCM 902(a).

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In the military, the accused enjoys not only the protections of Article 31, but also the Supreme Courts mandate from Miranda.33 When the process shifts from investigatory to the accusatorywhen its focus is on the accused and its purpose is to elicit a confession, our adversarial system begins to operate, and, under the circumstances here, the accused must be permitted to consult with a lawyer. In Miranda the court continued by stating, If he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no further questioning. 34 In the case of United States v. Riley,35 an agent of the Naval Criminal Investigative Service, testifying at Rileys courtmartial, made reference to the accuseds invocation of his right to remain silent during the interview. The Court of Criminal Appeals recognized that when the prosecution brings such matter to the attention of the factfinders, the usual test for prejudice is the constitutional standard of harmless beyond a reasonable doubt.36 After reviewing the evidence under this standard, the court below concluded: Considering all the evidence presented at trial, there is a reasonable possibility the erroneous introduction into evidence of the fact the Appellant repeatedly exercised his right to remain silent before trial might have contributed to his conviction. . . . Since it is not clear beyond a reasonable doubt that, absent the error, the members would have found the Appellant guilty, the error, if properly preserved, would not have been harmless under the Constitutional standard. Had the error been objected to at trial and the military judge failed to take adequate corrective action, the Appellant would be entitled to a new trial.

United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967) 34 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2nd 2d 694 (1966) 35 United States v. Riley, 47 M.J. 27 (1997) 36 United States v. Moore, 1 M.J. 390 (CMA 1976); see also United States v. Ward, 1 MJ 176 (CMA 1975) (adopting test of Chapman v. California, 386 U.S. 18 (1967)).
33

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Noting, however, that a constitutional or other right may be forfeited by failure to make timely objection, the court below then analyzed the effect of the error in light of Appellants failure to object. The court noted that the doctrine of forfeiture does not apply where there is plain error.37 The court also observed that to demonstrate plain error, an Appellant has the burden of showing the appellate court that there was error, that it was obvious, and that "it affects a substantial right of the accused, i.e., it was prejudicial."38 In United States v. Riley, the court noted: This tainted view is especially important when considered in connection with the nature of the Governments case. As the Court of Criminal Appeals noted, the testimony of the prosecutrix was wavering; there were no other witnesses and "no physical evidence or other direct corroboration at trial that any sexual acts took place." 44 MJ at 674. In opposition to the childs testimony, Appellant denied that any sexual activity had occurred and offered evidence of his good military character. With the record in this state, we conclude that the obvious and substantial error in referring to Appellants invocation of his right to silence "materially prejudice[d] [his] substantial rights." Art. 59(a). The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings and sentence are set aside.39 The failure of NCIS Agents to comply with the United States Constitution, as interpreted results not only in the dismissal and loss of the liability on the part of the officer, administrator and the agency. mandates of the by the courts, cases, but also as well as the

The Government has further acted in bad faith by causing the destruction of the recordings from the court-martial. Testimony given by Special Agent Muelenberg was internally inconsistent and not corroborated by other witnesses or the alleged victim See Mil.R.Evid. 103(d), Manual for Courts-Martial and Art 59(a) Uniform Code of Military Justice (UCMJ). 38 44 MJ at 675 (citing United States v. Prevatte, 40 MJ 396, 397 (CMA 1994)). 39 United States v. Riley, 1 MJ at 391 (1997)
37

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herself. Once the inconsistencies in the Government witness statements (i.e. Special Agent Eric Muelenbergs statements about violating Appellants Miranda rights) were brought to the attention of the Government, the recordings from the courtmartial were destroyed in March 2011.40 Appellant believes that the Government, with malicious intent, destroyed the recordings from the court-martial because of the incriminating statements made by Special Agent Eric Muelenberg. In Arizona v. Youngblood, Justice Stevens found the trial judges instructions significant: if you find that the State has...allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the States interest.41 An accused need only to establish that such evidence is of such central importance that it is essential to a fair trial and that there is no adequate substitute.42 The Navy-Marine Corps Court of Criminal Appeals argued in their defense, with regards to the military judge acknowledging that he allowed an NCIS agent statements about a violation of Appellants Miranda rights to be ignored, is that a military judge is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence. If we are to believe what the Navy-Marine Corps Court of Criminal Appeals stated as to the judge knowing what is inadmissible in the courts or not, then we should also believe that the military judge, by his own admission, allowed this constitutionally guarded right to be willfully ignored and the Government tried to cover up this entire statement from Special Agent Eric Muelenberg by destroying recordings of the trial. The military judge, LtCol Brian E. Kasprzyk, demonstrated that he not only has abused his authority as the finder of fact under R.C.M. 902(a) but also did not remain impartial to the proceedings before him. This goes against the Supreme Courts rulings in Miranda. An admission of a violation of someones Miranda rights is no more inadmissible to the courts than the act itself and when it is brought to the attention of the courts, it is considered See attachment 6 Citing Arizona v. Youngblood, 488 U.S. 51, 59-60 (1988); See also United States v. Ellis, 57 M.J. 375 (2002) 42 United States v. Terry, 66 M.J. 514 (A.F.Ct.Crim.App. 2008)
40

41

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prejudicial and requires relief in the form on a dismissal of all charges. In Miranda, when an accused requests an attorney, all questioning must stop immediately. This did not happen in Appellants case. The NCIS agent stated to the court that he continued to interrogate the Appellant until the duty driver arrived. The actual statement was somehow omitted from the required verbatim record of trial, according to R.C.M. 1103(b)(2)(B), yet the military judge acknowledges that this statement did exist. The integrity of the judicial processes in the Appellants case has now been compromised to a point by the military judges failure to act upon the admission by NCIS and the Navy-Marine Corps Court of Criminal Appeals failure to grant relief based on the Supreme Courts rulings in Miranda, that it is now up to this court to grant relief sought at the lower courts because the conviction cannot stand. A. WHETHER SPECIAL AGENT ERIC MUELENBERGS ADMISSION OF TAMPERING WITH EVIDENCE VIOLATES APPELLANTS CONSTITUTIONAL RIGHTS At trial, Special Agent Muelenberg admitted that he put the marks on the drawing, as he explained to the military judge that was submitted into evidence at the Article 32 hearing, thereby admitting to tampering with the evidence used against Appellant at trial. (Record at 283-286) Special Agent Muelenberg also said that he did not look at any other suspects even though Gloria Ehlers (Appellants ex-wife), a boy named James Angle and Glorias mother, Donna Kerr were said to have witnessed this alleged sexual assault by the alleged victim and her mother. (Record at 290-293) The criminal process will be found lacking only where it offends some principle of justice so rooted in tradition and conscience as to be ranked as fundamental.43 We have discovered evidence of false reports by prosecution witnesses44, evidence contradicting a prosecution witnesses statements or reports45, evidence undermining a prosecution witness expertise (e.g. inaccurate statements)46 and evidence that a witness has a reputation for
43

See Patterson v. New York, 432 U.S. 197, 202, 97 S. Ct. 2319, 2322, 53 L.Ed.2d 281 44 People v. Hayes, 3Cal. App. 4th 1238, 1244 (1992) 45 People v. Boyd, 222 Call. App. 3d 541, 568-569 (1990) 46 People v. Garcia 17 Cal.App. 4th 1169, 1179 (1993)
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untruthfulness47, all of which seriously undermine the interest of justice and calls to question the motive of the Government and its witnesses. We have shown the courts more than a colorable showing of possible prejudice48 and because the credibility of the Government witnesses, implicated the integrity of...criminal trial in the federal court, the conviction cannot stand.49 IV. WHETHER THE GOVERNMENT WITHHELD EXCULPATORY EVIDENCE TO TAINT THE COURT-MARTIAL AND DENY APPELLANT A FAIR TRIAL, IN VIOLATION OF SUPREME COURTS DECISION IN BRADY v. MARYLAND AND SMITH V. CAIN

At the article 32 hearing, the Government introduced the results of the interrogation of Appellant. (Record at G.E. 6) In the report, Special Agent Muelenberg alleges that Appellant gave him a confession as to the acts that he committed with the alleged victim. Special Agent Muelenberg also testified at the trial that Appellant admitted to certain acts with the alleged victim, HS. (Record at 282-284) What the Government did not submit into evidence or even advise the defense about was a report from NCIS dated August 1, 2006 which states that during both interrogations Appellant maintained his innocence. There was NO CONFESSION.50 The document was found post-trial in a request for the case notes from the Government to Appellants previous attorney Michael Eisenberg and calls into question the truthfulness of Special Agent Muelenbergs statements at trial. This is also a violation of the Supreme Courts holding in Brady and Smith v. Cain.51 The Supreme Court began its analysis by noting that deliberately deceiving the trial court by presenting evidence known to be false, had been held to be incompatible with the rudimentary demands of justice.52 In Naupe, the court held that the same result occurs when the Government, although not soliciting false evidence, allows it to go uncorrected when it appears.53

47 48

3 Witkin Cal. Evid., 4th Ed., 288-290 Strickland v. Washington, 466 U.S. 668 (1984) 49 Mesarosh v. United States, 352 U.S. at 3, 9 (1956) 50 See attachment 4 51 Smith v. Cain, S.Ct. No. 10-8145 2011 52 Mooney v. Holohan, 294 U.S. 103 (1935) 53 Naupe v. Illinois, 360 U.S. 264 (1959)
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Per Brady, prosecutors have a duty to disclose exculpatory evidence even if not requested. Though it is true that the prosecution is not required to search for the exculpatory evidence and must only disclose the evidence it has in its possession, custody or control, the prosecutions duty to disclose includes all information known to all members of its team, e.g. police, investigators, crime lab, etc. Prosecutors are required to disclose to the defense evidence favorable to the defendant which is either exculpatory or impeaching and is material to either guilt or punishment. The Supreme Court has established additional analysis for the reviewing court to consider when post-trial information so undermines the credibility of a principle Government witness that it undercuts the integrity of the Governments case and the judicial process. In Mesarosh, the Supreme Court acknowledged certain unique circumstances in which the credibility of important Government witnesses implicates the integrity of the judicial process. Under these circumstances, only a judicial body, equivalent to the finder of fact may determine what it would do on a different body of evidence.54 It is up to the courts to ensure uniformity and consistency in meeting the constitutionally required discovery obligations under Brady. The Navy-Marine Corps Court of Criminal Appeals has disregarded the Supreme Courts mandates in these types of cases. Because of the Governments failure to disclose the NCIS Report of Investigation dated 8/1/2006, which shows that Special Agent Muelenberg was being untruthful at trial, Appellants conviction cannot stand. V. WHETHER DETAILED DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL WHERE DETAILED DEFENSE COUNSEL FAILED TO PRESENT A DEFENSE IN APPELLANTS CASE, FAILED TO OBJECT TO GOVERNMENT VOUCHING FOR HSs CREDIBILITY, FAILED MOTION THE COURT TO DISMISS ALL CHARGES ON SPEEDY TRIAL GROUNDS AND FAILED TO OBJECT TO THE INTRODUCTION OF EVIDENCE BARRED BY MIL. R. EVID. 707(a)

Detailed Defense Counsel (hereinafter referred to as DDC), Lt. Michael Melocowsky, was aware of Randi Hesters statement made to NCIS in June 2004 because of the Governments introduction of the statement as evidence against Appellant at the Art 32 hearing in February 2007.
54

Mesarosh, 352 U.S. at 5-6

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Randi Hester told NCIS agents that she was the first person to hear HSs allegations that someone touched her, but that HS never gave a name. Randi stated that she and HS went to HS mother, Mrs. Stacey Skovranko and that HS again said someone touched her, still not providing a name. Randi was very clear to NCIS agents that she (Randi) witnessed Mrs. Skovranko provide HS Appellants name as the person who did this to her and HS readily agreed.55 Appellate Judge Maksym noticed this statement and commented that he believed the child was coached in her statements and testimony by her parents because of HSs inconsistent statements and the language she used when answering questions upon cross examination.56 DDC failed to question Mrs. Skovranko about having told HS it was Appellant who committed this alleged act and also failed to call Randi Hester as a witness in defense of Appellant. If DDC had adequately prepared and presented a defense, one credible witness would have testified contrary to the alleged victims assertion of being sexually assaulted by Appellant, because the witness was present when HSs mother told HS it was Appellant. DDCs conduct is deficient because DDC made no strategic decisions due to complete failure to prepare an adequate defense.57 DDC was further deficient in his defense of Appellant because he failed to motion the court for a dismissal of charges on statutory speedy trial rights58 and failed to call expert witness Dr. Philip Esplin in defense of Appellant.59 Dr. Esplins testimony was crucial because he was going to testify about how he witnessed that HSs actions are not consistent with a child who has been sexually assaulted. DDC further failed in his duties to Appellant by allowing Government counsel to state in his closing argument that the alleged victim, HS, was credible in her statements and testimony given.60 Government counsel told the military judge and shes credible, sir (Record at 371), thereby vouching for HSs credibility. Government counsel is not allowed to vouch for the credibility of a witness, only present evidence to the finder of
55 56

IO Exhibit 7, pg 2 para. 8; G.E. Exhibit 4 pg 2 para. 8 Attachment 5 57 Berry v. Gramley, 74 F. Supp. 2d 808 (N.D. Ill. 1999) 58 People v. Alcazar, 527 N.E.2d 325 (Ill. App. Ct. 1988) 59 United States v. Jasin, 215 F. Supp. 2d 552 (E.D. Pa. 2002), recon. denied, 292 F. Supp. 2d 670 (E.D. Pa. 2003) 60 Matthews v. State, 350 S.C. 272, 565 S.E.2d. 766 (2002)
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fact. It is then up to the finder of fact to determine the witnesses credibility. DDC continued to fail in his duties by not objecting to the introduction of evidence barred from the court-martial under Mil. R. Evid. 707(a). The Government introduced the results of the polygraph exam of Appellant into evidence at the Art 32 investigation.61 According to Mil. R. Evid. 707(a): Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence. The investigating officer, LtCol Howard D. Russell, IMA Det. (SJA), erroneously allowed Government counsel to admit this evidence into record and the DDC never once objected to the admission. DDCs failure to provide a defense, call on expert testimony, motion for a dismissal of all charges based on a speedy trial rights violation, object to Special Agent Muelenbergs testimony where he admitted to violating Appellants Miranda rights, call Randi Hester to challenge HSs credibility and failing to object to Government counsels vouching for HSs credibility, is so egregious and does not meet with the courts standards to zealously defend an accused, the conviction cannot stand. VI. WHETHER THE MILITARY JUDGE ABUSED HIS AUTHORITY BY NOT DISMISSING THE CHARGES WHEN THE ALLEGED VICTIM, HS DENIED MAKING INCONSISTENT STATEMENTS

During testimony, HS made several inconsistent statements upon questioning. Prior to her testimony, HS stated to NCIS in her forensic interview that she told her story to her parents; that James Angle and Gloria Ehlers (Appellants ex-wife) witnessed this alleged sexual assault and that Appellant physically threatened her and raped her.62 When asked at trial who she told this story to, HS stated that Randi Hester told her mom and dad her story about what happened to her contrary to what she stated previously. (Record at 350) HS also denied stating previously that Appellant threatened to kick and punch her. (Record at 356) At this point, HSs credibility should
61 62

G.E. 7 G.E. 1
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have been in question by the military judge since he was familiar with her previous statements to NCIS agents. HS was not consistent in her statements and kept stating that she wasnt sure or didnt know about key events which Appellant was charged with or who was present during the alleged sexual assault. (Record at 350-352) Evidence offered to impeach by contradiction shows that a witnesss in-court testimony was not correct. The inference to be drawn is not that the witness was lying, but that the witness made a mistake of fact and so perhaps her testimony may contain other errors and should be discounted accordingly.63 It is the principle means by which the believability of a witness and the truth of his testimony are tested.64 According to Mil. R. Evid 801(d)(1)(A), when the alleged victim, HS, denied making her prior statements about Appellants alleged actions, it was then the military judges obligation to find that HSs prior statements are inconsistent with her in-court testimony and therefore unreliable. The same announcement the military judge made when Mrs. Skovrankos testimony was impeached. At this point, all statements given by HS before and during trial could not be used as substantive evidence against Appellant because of her inconsistent statements and the trial judge abused his discretion in ruling on impeachment matters, the conviction cannot stand.65 VII. WHETHER APPELLANTS FIFTH AMENDMENT RIGHTS TO TIMELY POST TRIAL REVIEW WERE VIOLATED WHEN 182 DAYS PASSED BETWEEN THE COURT-MARTIAL AND ACTION BY THE CONVENING AUTHORITY. In 2005, this court decided Diaz v. Judge Advocate General of the Navy, holding that Fifth Amendment Due Process rights included a right to timely post-trial review. This laid the groundwork for the landmark case of United States v. Moreno one year later.

Simmons, Inc. v. Pinkertons, Inc., 762 F.2d 591, 604 (7th Cir. 1985) 64 185 U.S. CONSTITUTION, AMEND VI. 65 U.S. v. Mings, SCM 31047, 1997, CCA LEXIS 78 (A.F.C.C.A. Feb 20, 1997)
63

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In Moreno, the court took Diaz one step further and applied the four-factor Barker v. Wingo due process violation test to posttrial delays. Each factor is weighed against the others, and no single factor is required to make a finding of a due process violation.66 Finally, the court set several post-trial review timeline standards where, if violated, there would be a presumption of unreasonable delay, and the Barker v. Wingo four-factor test would automatically be triggered. The main issue was that the convening authority action must take place within 120 days of trial.67 Because this did not happen in Appellants case, the conviction cannot stand. Appellants date of conviction was on August 21, 2007 and the convening authority took action on Feb 19, 2008, 182 days after the trial. This goes against this court holding in Moreno. VIII. WHETHER THE JUDGES FINDINGS AT THE COURT-MARTIAL ARE AMBIGIOUS AND THEREFORE NOT AUTHORIZED BY LAW The Governments basis of these alleged offenses spanned the timeframe from on or about 02 Aug to on or about 03 Oct. At the trial, the alleged victim, HS, specifically told the court that this was a one-time incident, not numerous times as originally alleged in the charges and specifications. (Record at 354) The judge never made the clarification before the end of the trial as to which day this alleged incident occurred, thereby making all the findings ambiguous and the courts are unable to review the findings under Article 66, UCMJ. The effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.68 Therefore, it is the military judges obligation to the accused and the court to clarify which date the accused was found guilty of and If there is no indication on the record which of the alleged incidents forms the basis of the United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), citing Moreno, 63 M.J. at 13536 (citing Barker v. Wingo, 407 U.S. 514, 530) 67 Id. at 142. Barker was a Sixth Amendment case dealing with pre-trial delays, but as noted in Moreno, civilian courts had been applying its test to post trial delays analyzed as due process violations. (Id. at 135 & n.6)
66

68

United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005)

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conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review.69 Because no clarification was made in Appellants case, the charges must be dismissed under Walters70. A finding on the guilt or innocence of the accused is not final until it is formally and correctly announced in open court.71 If an error was made in the announcement of the findings of the court-martial, the error may not be corrected by a new announcement in accordance of this rule. The error must be discovered and the new announcement made before the final adjournment of the court-martial in the case.72 This court has stated that in the context of a judge-alone trial, the clarification of the ambiguity can be accomplished by a clear statement on the record by the military judge as to which date the alleged incident took place on that formed the basis of the conviction and Double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty.73 However, a Court of Criminal Appeals may review the record to determine if there was only a single possible incident that met all the details of the specification for which the Appellant was convicted. Id. The military judges failure to do so resulted in fatally ambiguous findings that give rise to a the possibility that the {reviewing} court would affirm a finding of guilty based on an incident of which the Appellant had been acquitted of by the fact-finder at trial.74 According to this court, the only appropriate remedy for these violations at Appellants courtmartial, is to set aside the findings and dismiss the charges with prejudice. Appellant has shown this Court as he has shown the lower courts a clear and indisputable right to the relief requested because his confinement is under a void conviction and therefore under a sentence not authorized by law. Respondents
69

United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003); United States v. Wilson 67 M.J. 423, 428 (C.A.A.F. 2009) 70 United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) 71 United States v. London, 4 C.M.A. 90, 96, 15 C.M.R. 90, 96 (1954) 72 R.C.M. 922(d) 73 Wilson, 67 M.J. at 428 (citation omitted) 74 Wilson, 67 M.J. at 428
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Appellate Judge C.L. Reismeier Navy-Marine Corps Court of Criminal Appeals (Code 51) United States Navy 1254 Charles Morris St., SE Suite 320 Washington Navy Yard, DC 20374-5124 Telephone: (202) 685-7700 Facsimile: (202) 685-7690 Appellate Judge J.R. Perlak Navy-Marine Corps Court of Criminal Appeals (Code 51) United States Navy 1254 Charles Morris St., SE Suite 320 Washington Navy Yard, DC 20374-5124 Telephone: (202) 685-7700 Facsimile: (202) 685-7690 Appellate Judge B.L. Payton-OBrien Navy-Marine Corps Court of Criminal Appeals (Code 51) United States Navy 1254 Charles Morris St., SE Suite 320 Washington Navy Yard, DC 20374-5124 Telephone: (202) 685-7700 Facsimile: (202) 685-7690 Trial Judge Lieutenant Colonel Brian E. Kasprzyk MCB PSC Box 20086 Camp Lejeune, NC 28542 Telephone: (602) 514-7581

___________________________________ Angela Ehlers

___________________ Date

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