Title: Gov Motion for Determination of Admissibility of MRE 404(b) Evidence, 3 Aug 12

Release Date: 2014-03-20

Text: UNITED STATESOF AMERICAProsecution Motionv.for Preliminary Determinationof Admissibility ofMRE 404(b) EvidenceManning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 222113 August 2012RELIEF SOUGHTThe Prosecution in the above case respectfully requests that this Court make preliminarydeterminations on the admissibility of evidence of crimes, wrongs, or acts that are not being usedto prove character lAW Military Rule of Evidence (MRE) 404(b) and on the use of evidence torebut the offer of a pertinent character trait of the Accused lAW MRE 404(a). The Govemmentseeks said preliminary determinations to increase the efficiency of the proceedings and to ensurethe trier of fact is only presented admissible evidence. See RCM 916(b)(13), discussion.BURDEN OF PERSUASION AND BURDEN OF PROOFThe burden of proof on any factual issue, the resolution of which is necessary to decide amotion, shall be by preponderance of the evidence. RCM 905(c)(1). The burden of persuasionon any factual issue, the resolution of which is necessary to decide a motion, shall be on themoving party. RCM 905(c)(2). The United States has the burden of persuasion as the movingparty.FACTSThe Accused is charged with one specification of aiding the enemy, one specification ofdisorders and neglects to the prejudice of good order and discipline and service discrediting,eight specifications of violations of 18 U.S.C. § 793(e), five specifications of violations of 18U.S.C. § 641, two specifications of violations of 18 U.S.C. § 1030(a)(1), and five specificationsof violating a lawful general regulation, in violation of Articles 104, 134, and 92, Uniform CodeofMilitary Justice (UCMJ). See Charge Sheet.The Accused attended Advanced Individual Training (AIT) in Fort Huachuca, Arizonafrom April 2008 to August 2008. See Prosecution Exhibit (PE) 4. His platoon sergeant was SFCBrian Madrid. See Enclosure 1. AIT began with a block of instruction on INFOSEC, whichteaches the military analyst how to handle and safeguard classified information. Id. TheFNFOSEC training block of instruction included training on how to properly mark and handleclassified informafion, the meaning of the various classificafions, how to effectively use theintemet, the value of the intemet in research and collection, and operational security includingthe enemy's use of the intemet. See PE 5.In June 2008, the Accused received corrective training. See Enclosure 1. SFC Madridrequired the Accused to give a presentation to the platoon at formation, present a PowerPoint1APPELLATE EXHIBITPAGE REFERENCED:PA0Ei_OFQSPPAGESpresentationto SFC Madrid, and prepareawritten product. The corrective training wasaresultof the Accused posting videos onYouTube where he used ^^buzzwords^^ such as top secret,secret, classified, and SCIF,which he was taught not to do. SFC Madrid saw one ofthe videosonYouTube in which the Accused discussed his work ina^^secretSCIF^^ and his handling ofclassifiedinformation. Enclosurel.The presentation to the platoon discussed information security,proper handling ofinformation,aSoldier^s obligation to protect and not expose classified material,the possibilitythataSoldier^s disclosure that he or she has access to classified material may be dangerous to theSoldier, and that enemyforces are trying to collect information on theU.S.Military. Id. Thewritten product defined secret information and identified the typeofpeople who try to collectinformation for use against the United States, such as foreign govemments, enemies, spies,hackers, etc. Id^ The PowerPoint presentation closely mirrored the written product. Id. ThePowerPoint presentation was found on the Accused^s extemal hard drive. See Enclosure 2.In approximately March 2009,SPCJihrleah Showman became the Accused^s supervisorat Fort Drum, NewYork. Enclosure3. Both she and the Accused were assigned the MOS 35Fand attended training together at the unit, including JRTC training. Id^ They also deployedtogether in October 2009. Id. Before the deployment, SPC Showman counseled the Accused onhis military bearing. Id. During this counseling, SPC Showman asked the Accused what the fiagmeant to him. Id. The Accused responded that the fiag meant absolutely nothing to him, and hehad no allegiance to the United States or its people. Id. SPC Showman repeated the Accused^sstatement inaswom statement given during the investigation into the Accused^s misconduct.SeeEncIosure4.On8May 2010, the Accused punched SPC Jihrleah Showman in the face. See Enclosure5. Because of this misconduct, the Accused was removed from the2 10Mountain SCIF andassigned to work in the supplyroom. Enclosure6. Healso received an Articlel5for hismisconduct. SeeEnclosure5.The prosecution provided the defense MRE 404(b)noticeon6April 2012. Enclosure7.The prosecution published its witness list on 22 June 2012and named both Ms.JihrleahShowman (SPC Showman) and SFC(R) Brian Madrid as witnesses. See Appellate Exhibit(AE)CLXILWITNESSES/EVIDENCEThe prosecution requests the Court consider the charge sheet and the71isted enclosures.LEGALAUTHORITY AND ARGUMENTLEVIDENCEOFTHEACCUSEDS OTHER WRONGS IS ADMISSIBLE FORANONCHARACTER PURPOSEIn general, MRE 404(a) prohibits admission of evidence ofaperson'scharacter to proveaction in conformity therewith onaparticular occasion. MRE 404(b), however, allows theintroduction of evidence of other crimes,wrongs, or acts provided they are not used to showaction in conformity with that character onaspecific occasion. The prosecution may offer thisnon-propensity evidence against the Accused in its case in chief as proof of"motive,opportunity,intent, preparation, plan, knowledge, identity or absenceofmistake or accident."UnitedStatesv Morrison.52MJ 117.121 ^ C A A F 1999^^citingMRE404^b^^ Evidencedoes not, however, need to fall within one ofthe nonpropensity examples given by MRE 404(b)tobeadmissible United StatesvCastillo,29MJ 145. 150(CMAI989^MRE404(b)"isaruleofinclusion,notexcIusion."UnitedStatesv.Diaz,59MJ 79,93 9 4 ( C A A F 2003)^seealso United StatesvTyndale.56MJ 209.212(CAAF 2001^:United StatesvBrownin^. 54 M.J. I.6(C.AA.F.2000^. MRE 404^b^onlv excludes propensitvevidence, and then goes on to giveanonexhaustive list ofthe purposes for which the evidencecould beadmissible United Statesv.Johnson,49MJ 467.473 (C.A.A.F.1998)."^T^hesoletest under Mil.R.Evid.404(b)is whether the evidence ofthe misconduct is offered for somepurpose other than to demonstrate the Accused'spredisposition to crime and therebyto suggestthat the factfinderinfer that he is guilty...."Castillo, 29 M.J.atl50^ see also Huddlestonv.UnitedStates, 485 US. 681,686(1988)Toensure the evidence hasaproper purpose under MREI04(b),402,and 403,theU.S.Court of Appeals for the Armed Forces(CAAF) applies the following three-pronged test todetermine the admissibility ofother acts evidence under MRE 404(b): (l)Does the evidencereasonably supportafinding by the factfinderthat the Accused committed prior crimes,wrongs,oracts7 (2) What fact ofconsequence is made more or less probable by the existence ofthisevidenced (3)Does the probative value substantially outweigh any potential unfair prejudicedDiaz,59MJ at94(citin^UnitedStatesv Reynolds.29MJ 105, 109(CMA 1989)) Iftheevidence meets each ofthese three tests, it is admissible. Id.A.The Evidence ReasonablySupportsaFindingbythe Fact Finderthattl^eAccused Committed Prior Bad ActsWhether the evidence reasonably supportsafinding that the Accused committed priorcrimes,wrongs, or acts,"is founded on ^MREj104(b)dealing with relevance conditioned onafact"United StatesvActon,38MJ 330, 333 (1994) TheCourt of At^t^eals has held that"^tjhe threshold for this^first^ prong of admissibility is low." Acton, 38 M.J.at333^see alsoBrowning, 54 M.J. at 6. Acton provides:^ijn determining whether the Govemment has introduced sufficientevidence to meet Ru1e104(b), the trial court neither weighscredibility nor makesafinding that the Govemment has proved theconditional fact byapreponderance ofthe evidence. The courtsimply examines all the evidence in the case and decides ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^...^^3 8 M J a t 333 (citingHuddleston,485 USat690)(emt^hasis added): seealso Castillo, 29MJat151("^T^he military judge must admit the evidence ifhe concludes that the factfindercouldreasonably find byapreponderance ofthe evidence that the other misconduct had occurred, eventhough the judge himself would not make suchafinding.")All three govemment witnesses (Ms. Showman, SFC(R) Madrid, and SSG Bigelow)testified under oath at the Article 32. In addition, Ms.Showman gaveaswom statementconsistent with her Article 32 testimony regarding the Accused^s disloyal statement. Thegovemment will ofler the slideshow to support SFC(R)Madrid^s statement, which was recoveredfrom the Accused^s extemal hard drive. The Accused^s actions of punching then SPC Showmanin the face is supported by the Articlel5the Accused received and its supporting documentation.Based on swom testimony alone, the trier offact could reasonably find that the Accusedcommitted the misconduct in all instances.All three witnesses are on the prosecution^s witness list. Assuming the above evidence isagain elicited under oath at trial, there is sufficient evidence to admit the uncharged misconductsubject to the introduction ofthe evidence at triaL Accordingly,thefirstprong ofthe Reynoldstest is conditionally satisfied.B. The Existence of thisEvidenccMal^esFacts of Consequence More ProbableMRE 401defines "relevant evidence" as "evidence having any tendency to make theexistence ofany fact that is ofconsequence to the determination ofthe action more probable orless probable than it would be without the evidence." MRE 401. In general, all relevantevidence is admissible. See MRE 402.The Accused^s infractions will directly assist the factfinderin deciding whether or notthe Accused had the requisite knowledge to commit the misconduct. The evidence is not beingoffered to prove character. The training that the Accused presented to his platoon sergeant andhis AITclass in response to his breach oflNFOSEC/OPSEC shows that the Accused knew thatinformation posted on the intemet is accessible to and sought out by the enemy. See ChargeSheet, Charge ILSpecificationl^see also Castillo, 29 M.J.at 151(allowing the factfindertoconsider uncharged misconduct between the Appellant and the victim to understand thesignificance ofagesture). Without discussing the underlying uncharged act, the factfinderwillnot be able to sufficiently comprehend why the Accused had to complete the various correctivetraining assignments.The Accused^s disloyal statement to SPC Showman is evidence relevant to the Accused^sstate ofmind. The evidence is not being offered to prove the character ofthe Accused nor is itbeing offered to prove motive. The evidence is being offered to show that the Accused madeastatement that he had no particular loyalty to the country whose information it was his job tosafeguard. The statement is evidence ofthe Accused^s intent for the charged misconduct becauseit makes it more likely that the Accused did not care ifthe enemy had access to the informationthat was posted on the Intemet. Specifically,it is circumstantial evidence that the Accusedknowingly gave intelligence to the enemy in support of Charge 1,Specification1^that theAccused wrongfully and wantonly caused the information to be published on the intemet withknowledge that it would be accessible to the enemy in support of Charge II,Specificationl^thatthe Accused^s conduct was willful in support ofCharge II, Specifications 2,3,5,7,9,10,11,12,13,and 15^and that the Accused stole, purloined, or knowingly convertedathingofvalue to theUnited States in support of Charge 1LSpecifications4. 6. 8. 12. and16. See Charge Sheets see,e.g.,Huddleston,485 U.S.at 685 (^^Extrinsic acts evidence may be critical to the establishmentof the trust as toadisputed issue, especially when that issue involves the actor^s state o f m i n d . . .B)^ United StatesvHumt^hrevs.57MJ 83 91 ^ C A A F 2002^^Evidenceof^^otheracts^^ oftheAccused^s inappropriate comments was admissible to show Accused^s non-innocent intent inmaking charged inappropriate comment.)The Accused^s misconduct ofpunching SPC Showman is necessary to show the timelineofthe Accused^s removal fi^om the SCIF and placement in the Supply Room to work with SSGBigelow where the Accused^s misconduct continued. Because ofthe battery,the Accused wasremoved from the2 10Mountain SCIF and assigned to work in the supply room. In the supplyroom, the Accused stole or converted the United States Forces-Iraq (USF I) Global Address List(GAL). See Charge Sheet, Charge II, Specificationl6. Without discussing the underlyingmisconduct, the sudden change in the Accused^s position will be confiising to the panel and thetimeline will be unclear. See Castillo, 29 M.J.at 150 ("It is unnecessary...that relevantevidence fit snugly intoapigeon hole provided by ^MREj 404(b).")The uncharged misconduct makes facts ofconsequence more probable under the liberaladmissibility standard outlined in MRE 402. The evidence is not being used to establishcharacter, but is being used to show knowledge, state ofmind, andatimeline of events. Assuch,the information will assist the factfinderinaproper determination on the merits, and satisfiesthe second prong ofthe Reynolds analysis.C. The Probative Value Substantially Outweighs any Potential Unfair PrejudicePrejudice alone is not sufficient to warrant exclusion. Evidence ofalegal relevancetheory should only be excluded when the probative value is "substantially outweighed" by theaccompanying prejudicial dangers. UnitedStatesv.Teeter,12M.J.716(A.C.M.R.1981)(stating that strikingabalance between probative value and prejudicial effect is lefl to the trialjudge and that the balance "should be struck in favor of admission"). Virtually all evidence isprejudicial to one party or another. Tojustify exclusion the prejudice must be unfair. UnitedStatesv.CandelariaSilva,162F.3d 698, 705 (1st Cir. 1998). However, "l^a^nAccused is notimmunized...against the Govemment'suse of evidence of other misconduct because the othermisconduct was especiallyfiagrantand repugnant." Castillo, 29 M.J.at 151^see also UnitedStatesvStokes.12MJ 229,239(1982)Relevant evidence must be weighed against its tendency to create ^^^^^ prejudice,mislead the factfinder,cause undue delay,or waste time. United Statesv.Dimberio, 56 M.J.20,24(C.A.A.F.2001)(emphasis added). Unfair prejudice occurs when the proffered evidencecauses, or leads, the factfinderto makeadecision on an improper basis. OldChiefv.UnitedStates,519US 172,180(1997).Although there is notaclear test to follow,CAAF has stated that factors formilitaryjudges to consider in conductingabalancing test are the following:the strength ofthe proofofthe prior act^ the probative weight ofthe evidenced the potential to present less prejudicial evidenced thepossible distraction ofthe factfinders the time needed to prove theprior conducts the temporal proximity ofthe prior events thefrequency ofthe acts^ the presence ofany interveningcircumstances^ and the relationship between the parties.United StatesvBerry,61MJ91(CAAF 2005)(citin^ United StatesvWri^t.53MJ 476.482 ( C A A F 2000))The Accused^sINFOSEC/OPSECbreachesatAIT stand up to the factors in Berry Thereis strong proofthat the Accused committed the misconduct. His platoon sergeant saw andtestified under oath to seeing the video posted onYouTube. In addition, CIDrecoveredacorrective training PowerPoint from the Accused^s extemal hard drive that corresponded to thedate and content ofthe PowerPoint that the Accused presented to SFC(R) Madrid. The evidenceis probative to the elements conceming the Accused'sintent when he compromised information.In particular, the evidence directly establishes the Accused^s knowledge required in Charge II,Specificationl. The evidence is also not particularly prejudicial to the Accused, apart fromproving his knowledge, especially in light ofthe charged misconduct. The uncharged act showsasecurity infraction inatraining environment. As stated, the misconduct is being used to elicitsufficient facts for the factfinderto understand the evidence on corrective training, thus minimaltime will be spent on those cursory facts. The charged and uncharged misconduct are alsotemporally proximate as they occurred approximately eighteen months apart—one while theAccused was being trained in his MOS and one while the Accused was working in his MOS.The AITmisconduct occurred in June 2008 and the charged misconduct begins on or aboutiNovember 2009. The AITmisconduct was limited^ however, the charged misconduct rangedover several months, not to mention several databases. There was no presence ofinterveningcircumstances. The Accused committed the misconduct, it was reported by his peers, and it wasdealt with by his supervisor. The acts completeachronological and logical story^ removing theacts would create confusing gaps.SPC Showman^s testimony regarding the Accused^s disloyal statement also stands up tothe factors in Berry. ConsistentwithherArticle32testimony, SPC Showman gaveaswomstatement reporting the same misconduct bythe Accused. The statement will likely beprejudicial toapanelofSoldiers^ however, compared to the charged misconduct, the statement isnot overly prejudicial when viewed in light ofthe probative value it has into the Accused^s stateofmind. All evidence presented to the factfinderregarding the Accused^s serious misconductwill be prejudicial to the fact finder. Given the charged misconduct, however, the statement willlikely not beadistraction to the factfinderwho will be more focused on the serious misconductcharged. The testimony will take minimal time to elicit. The uncharged misconduct occurred inthe months immediately preceding the unites deployment,which is when, on or about November2009,the charged misconduct began. The statement occurred during one counseling sessionshowever, the charged misconduct ranged over several months, not to mention several databases.There were no intervening circumstances^ the Accused was inacounseling session withasuperior, not inacasual setting withafriend.The Accused^s battery ofSPC Showman also stands up to the factors in Berry. The actwas witnessed by several individuals and testified about under oath at the Article 32 by SPCShowman and others. The battery is relevant to show the circumstances ofthe Accused^sremoval from the SCIF and the corresponding timelines ofthe charged misconduct. There is noless prejudicial evidence to sufficiently explain the Accused^s movement to the fact finder.Compared to the charged misconduct, the battery will ofler little, if any,distraction for the factfinder. The time needed to show the uncharged misconduct will be very minimaL Theuncharged misconduct occurred during the charged misconduct. The specific battery onlyoccurred on one occasions however, the charged misconduct ranged over several months, not tomention several databases. There was an intervening circumstance ofaverbal disagreementbetween SPC Showman and the Accuseds however, that can also be elicited in testimony. Therelationship between the parties varied betweenasuperior-subordinate and peers^ they were notfriends.In addition to withstanding the factors recommended in Berry, the defense will haveample opportunity at trial, through cross examination and argument, to attack this evidence'smeaning, importance, and weight. Furthermore, the Court can and should issuealimitinginstruction to the panel that specifically discusses the permissible and impermissible uses ofthisevidence. These aspects oftrial procedure will help to ensure that that the evidence is used onlyfor its proper aforementioned purpose.Because the probative value ofthe evidence is not substantially outweighed by the dangerofunfair prejudice, the third Reynolds prong is satisfied in this case.H THEINFOSEC/OPSECVIOLATIONS,DISLOYALSTATEMENTS,ANDBATTERY OFSPCSHO^MANAREADMISSIBLEUNDERM.RE. 404(A)(1) TOIMPEACHDEFENSE WITNESSES ON GOOD SOLDIEREVIDENCE.Evidence ofaperson'scharacter oratrait of character is generally not admissible for thepurpose ofproving action in conformity therewith onaparticular occasion. MRE 404(a)(1).Evidence ofapertinent trait of character offered by an Accused, or by the prosecution to rebutthe same, however, is admissible. Id^ "The priceadefendant must pay for attempting to provehis good name is to throw open the entire subject which the law has kept closed for his benefitand to make himselfvulnerable where the law otherwise shields him." Michelsonv.UnitedStates,335 US 469, 479(1948)^ seealso United StatesvJohnson,46MJ8(CAAF 1997)Ifadefense witness offers opinion or reputation evidence that the Accused isagoodSoldier, the prosecution can rebut that evidence. MRE 404(a)(1). On cross-examination, theGoverttment may inquire into relevant specific instancesoftheAccused^s conduct. MRE 405(a).The questions would refer to the relevant uncharged misconduct, such as the Accused^s breach ofINFOSEC/OPSEC at AIT,disloyal statements, and battery ofSPC Showman. Specifically,theprosecution will test the foundation ofthe witnesses opinion or reputation evidence by asking"have you heard" or "did you know" questions ofthat witness. See, e.g.,United Statesv.Pearce,2 7 M J 1 2 1 , 1 2 4 ( C A A F 1988)Based on the testimony ofthe witnesses at the Article 32,the swom statement, thePowerPoint, the Articlel5,and, presumably,the testimony the witnesses will give at trial,theGoverrtmenthasagood faith belief that the Accused did commit all the above discussedmisconduct. Id.The evidence is extremely probative into whether or not the Accused isagood Soldier.Good Soldiers do not breach the security ofthe information that they were trained to protect,theyare loyal to theUnitedStates,andtheydonotpunchtheirpeersorsuperiorsin thefaceWhile certainlyprejudicial to the defense, the evidence is not unfairly prejudicial such that itwould be prohibited by MRE 403.In addition, the defense will have ample opportunity to argue to the panel their theory ofthecase. Finally,if the defense believes the evidence is inordinately damaging to their case, theycan choose not to call good Soldier witnesses. The risk ofprejudice is "a risk undertaken bythedefense in electing to present affirmative character evidence." Pearce,27M.J.atl25.CONCLUSIONThe prosecution requests the Court grant the prosecution^s motion and preliminarilydetermine the uncharged acts are admissible pursuant to MRE104(b),402,403,and 404(b), asall three Reynolds prongs are satisfied, and that the evidence is admissible foradifferent purposeunder MRE 404(a)(l)if the defense presents good Soldier evidence.ANGELMOVERGAARDCPT,JAAssistantTrial CounselIcertifythatlhave served or caused to be servedatrue copy ofthe above on the Defensecot^seIon3August2012.ANGELMOVERGAARDCPT,JAAssistantTrial Counsel7Encls1. Summarized Article 32Testimony,SFC Madrid2. Accused'sPowerPoint Presentation, 13Jun 083. Summarized Article 32Testimony,SPC Showman4. Swom Statement, SPC Showman5. Article15Packet6. Summarized Article 32Testimony,SSG Bigelow7 MRE404(b)Notice,6Apr11

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