UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, Appellee, v. Edwin A Ehlers Sergeant / E5 U.S.

Marine Corps Appellant ) ) ) ) ) ) ) ) ) ) ) ) ) ) SUPPLEMENT TO PETITION FOR GRANT OF REVIEW Crim. App. Dkt. No. 200800190 USCA Dkt. No. 10-0039/MC

TO THE HONORABLE, JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: The undersigned counsel, on behalf of Edwin A. Ehlers, hereby petitions the United States Court of Appeals for the Armed Forces for a grant of review of the decision of the court of Criminal Appeals on appeal under Article 66, Uniform Code of Military Justice 10 USC § 866, pursuant to the provisions of Article 67(a)(3), Uniform Code of Military Justice, 10 USC § 867(a)(3). Respectively Submitted, /s/ Michael D.J. Eisenberg Michael D.J. Eisenberg 700 12th Street, NW; Suite 700 Washington, DC 20005 O: (202) 558-6371 F: (202) 403-3430 CAAF Bar #33677 michael@eisenberg-lawoffice.com Counsel for the Appellant PVT Edwin Ehlers (E-file/E-mail on 10/16/09

Table of Contents
ASSIGNMENTS OF ERROR............................................1 STATEMENT OF STATUTORY JURISDICTION.............................2 STATEMENT OF THE CASE...........................................2 STATEMENT OF THE FACTS..........................................5 SUMMARY OF THE ARGUMENT.........................................7 ARGUMENT........................................................8 I. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE I.................................8 A. AS A MATTER OF LAW HS'S TESTIMONY IS FAR TOO INCONSISTENT, CONTRADICTED AND VAGUE TO SUPPORT APPELLANT'S CONVICTION....9 i. HS'S TESTIMONY IS TOO INCONSISTENT WITH PRIOR STATEMENTS TO SUPPORT APPELLANT'S CONVICTION.........................9 ii. HS'S TESTIMONY IS TOO CONTRADICTED BY EXTRINSIC EVIDENCE TO SUPPORT APPELLANT'S CONVICTION...............10 iii. AS A MATTER OF LAW HS'S MEMORY OF THE ALLEGED INCIDENT IS TOO WEAK TO SUPPORT APPELLANT'S CONVICTION............11 B. THE EVIDENCE OF THIRD PARTY SUGGESTION IS TOO OVERWHELMING TO HOLD MS. SKOVRANKO'S TESTIMONY CREDIBLE.................12 C. ALLEGED APPELLANT'S ADMISSION IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION.............................14 II. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE II...............................14 III. APPELLANT WAS PREJUDICED BEFORE AND DURING THE TRIAL BY THE MILITARY'S MISCONDUCT....................................15 III. APPELLANT WAS PREJUDICED BEFORE AND DURING THE TRIAL BY THE MILITARY'S MISCONDUCT....................................15 A.. Detailed Defense Counsel's performance was so deficient that it fell well below the level of competency under Strickland that it prejudiced Appellant's right to a fair trial......................................................15 B. Prosecution's deliberate and questionable actions so undermined the Defense that it prejudiced Appellant's right to a fair trial............................................17 IV. APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE PROSECUTION'S ACTS OF UNLAWFUL COMMAND INFLUENCE...........................18 V. CHARGES I AND II AND ADDITIONAL CHARGES I AND II AND ALL OF THEIR SPECIFICATIONS CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES...................................................19 VI. Charge I and charge II ARE MULTIPLICIOUS AS A MATTER OF LAW..........................................................21 VII. Appellant's sentence for TWENTY-FIVE years was so unduly disproportionate that it must be set aside...................22 REASON FOR GRANTING REVIEW.....................................24 CONCLUSION.....................................................25

Table of Authorities
10 U.S.C. § 866(c)...........................................................................................................................2 10 U.S.C. § 867(a)(3).......................................................................................................................2 Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).............................................9 Article 27, UCMJ...........................................................................................................................14 Jackson v. Virginia, 443 U.S. 307, 319 (1979)................................................................................8 Maryland v. Craig, 497 U.S. 836, 868 (1990)................................................................................12 R.C.M. 1002...................................................................................................................................20 Sixth Amendment..........................................................................................................................14 Strickland v. Washington, 466 U.S. 668, 687 (1984).....................................................................15 U.S. v. Arias, 3 M.J. 436 (CMA 1977)............................................................................................8 U.S. v. Owens-El, 889 F.2d 913 (Cal. 1989)..................................................................................10 UCMJ Article 125............................................................................................................................8 UCMJ Article 128............................................................................................................................3 UCMJ Article 134..........................................................................................................................13 UCMJ Article 66(c)...................................................................................................................2, 18 UCMJ Article 67(a)(3)..................................................................................................................1p. United States v. Atencio, 435 F. 3d 1222, 1232 (10th Cir. 2005)..................................................13 United States v. Ball, 470 U.S. 856, 864-65 (1985).......................................................................19 United States v. Barner, 56 M.J. 131, 137.....................................................................................20 United States v. Barner, 56 M.J. 131, 137 (C.A.A.F. 2001)..........................................................20 United States v. Barraza-Martinez, 58 M.J. 173, 176 (2003)........................................................21 United States v. Britton, 47 M.J. 195, 198 (C.A.A.F.1997)...........................................................20 United States v. Britton, 47 M.J. 195, 202 (C.A.A.F. 1997)..........................................................19 United States v. Chatfield, 67 M.J. 432, 441 (C.A.A.F. June 26, 2009)..........................................7 United States v. Cuento, 60 M.J. 106 (2004).................................................................................22 United States v. Durant, 55 M.J. 258, 260 (2001).........................................................................21 United States v. Edmond, 63 M.J. 343, 350 2006 CAAF LEXIS 1053.........................................16 United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)........................................................16 United States v. Frelix-Vann, 55 M.J. 329, 333 (C.A.A.F. 2001)..................................................19 United States v. Grigoruk, 52 M.J. 312 at 313 (2000)...................................................................15 United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)............................................................9 United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000).......................................................20 United States v. Lacy, 50 M.J. at 288.............................................................................................21 United States v. Lewis, 63 M.J. 405, 415 (2006)...........................................................................17 United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997)................................................................20 United States v. Mamaluy, 10 C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81 (1959)....................21 United States v. Nelson, 2003 CCA LEXIS 249 (A.F. Ct. Crim. App. 2003)...............................19 United States v. Paxton, 64 M. J. 484, 490 (C.A.A.F. 2007).........................................................19 United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998).....................................................20 United States v. Quiroz, 53 M.J. 600, 605 (N-M. Ct. Crim. App. 2000).......................................17 United States v. Quiroz, 55 M.J. 334, 336-37 (C.A.A.F. 2001).....................................................17 United States v. Rodriguez-Rivera, 60 M.J. 843 (2005)................................................................21 United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979)...............................................................17 United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999)..................................................................19 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)..........................................................21

United States v. Stone, 2004 CCA LEXIS 251 (2004)..................................................................21 United States v. Teters, 37 M.J.370. 373 (C.M.A. 1993)...............................................................19 United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997)............................................................14 United States v. Young 64 M.J. 404, 407 (C.A.A.F. 2007)..............................................................7

ASSIGNMENTS OF ERROR Appellant Sergeant Edwin A. Ehlers, II [hereinafter Appellant] assigns seven errors for this Court’s determination: I. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE I.1 A. AS A MATTER OF LAW HS'S TESTIMONY IS FAR TOO INCONSISTENT, CONTRADICTED AND VAGUE TO SUPPORT APPELLANT'S CONVICTION i. HS'S TESTIMONY IS TOO INCONSISTENT WITH PRIOR STATEMENTS TO SUPPORT APPELLANT'S CONVICTION. ii. HS'S TESTIMONY IS TOO CONTRADICTED BY EXTRINSIC EVIDENCE TO SUPPORT APPELLANT'S CONVICTION. iii. AS A MATTER OF LAW HS'S MEMORY OF THE ALLEGED INCIDENT IS TOO WEAK TO SUPPORT APPELLANT'S CONVICTION. B. THE EVIDENCE OF THIRD PARTY SUGGESTION IS TOO OVERWHELMING TO HOLD MS. SKOVRANKO'S TESTIMONY CREDIBLE. C. ALLEGED APPELLANT'S ADMISSION IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION. II. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE II.2 III. APPELLANT WAS PREJUDICED BEFORE AND DURING THE TRIAL BY THE MILITARY'S MISCONDUCT.3 A. DETAILED DEFENSE COUNSEL'S PERFORMANCE WAS SO DEFICIENT THAT IT FELL WELL BELOW THE LEVEL OF COMPETENCY UNDER STRICKLAND THAT IT PREJUDICED APPELLANT'S RIGHT TO A FAIR TRIAL. B. PROSECUTION'S DELIBERATE AND QUESTIONABLE ACTIONS SO UNDERMINED THE DEFENSE THAT IT PREJUDICED APPELLANT'S RIGHT TO 1 This issue is raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 See Footnote 1. 3 See Footnote 1. Page 1/25

A FAIR TRIAL. IV. APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE PROSECUTION'S ACTS OF UNLAWFUL COMMAND INFLUENCE.4 V. CHARGES I AND II AND ADDITIONAL CHARGES I AND II AND ALL OF THEIR SPECIFICATIONS CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES.5 VI. Charge I and charge II ARE MULTIPLICIOUS AS A MATTER OF LAW.6 VII. Appellant's sentence for TWENTY-FIVE years was so unduly disproportionate that it must be set aside.7 STATEMENT OF STATUTORY JURISDICTION The statutory basis for this Court's jurisdiction is found in Article 67(a)(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(3), which requires review in “all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.” The Navy-Marine Corps Court of Criminal Appeals (hereinafter “NMCCA”) reviewed this case pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c).

STATEMENT OF THE CASE On 27 April, 17 May, 21 June, 31 July, and 20-21 August 2007, Appellant was tried by a general court-martial composed of only 4 5 6 7 See Footnote 1. See Footnote 1. See Footnote 1. See Footnote 1. Page 2/25

a military judge at Camp Pendleton, California.

The charges and

specifications on which he was arraigned, his pleas, and the findings of the court-martial were as follows: Chg I UCMJ Art 125 Spec 1 Summary of Offenses Plea Did, btwn on or abt 1 Aug 02 and NG on or abt 1 Oct 03, commit sodomy with Hannah A. Skovranko, a child under the age of 12 yrs, by force and w/out consent of the said H. A. Skovranko. Did, btwn on or abt 1 Aug 02 and NG on or abt 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said Appellant, 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 Appellant. Did, btwn on or abt 1 Aug 02 and NG on or abt 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said Appellant, by slapping her on the buttocks while masturbating w/ the intent to gratify the sexual desires of the Appellant. Did, btwn on or abt 1 Aug 02 and NG Finding G

II

134

1

G

2

NG*

3

NG#

* Not guilty, but guilty of LIO of assault consummated by a battery, in violation of Article 128, UCMJ; and a Charge of violation of Article 128, UCMJ, guilty. R. at 378-379. # After presentation of the Government's case-in-chief, DDC made a motion for a finding of not guilty of all Charges and specification pursuant to the RCM 917 of reference (a), (R. at 362.) Absent objection by the Government counsel, the military judge granted the motion with regard to specification 3 of Charge II, specification 4 of Charge II, and specification 2 of the Second Additional Charge (R. at 365, 367.) After argument by counsel, the military judge also granted the motion with regarding to the Additional Charge and the sole specification thereunder. R. at 362-367.

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4

ACI

134

1

ACII

134

1

2

on or abt 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said Appellant, by inserting his finger into the anus of the said H. A. Skovranko w/ the intent to gratify the sexual desires of the Appellant. Did, btwn on or abt 1 Aug 02 and on or abt 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said Appellant, by pinching the buttocks of the said H. A. Skovranko w/ the intent to gratify the sexual desires of the Appellant. Did, btwn on or abt 1 Aug 02 and on or abt 1 Oct 03, take indecent liberties with H. A. Skovranko, a female under 6 yrs of age, not the wife of the said Appellant, by exposing pornographic images to the said H. A. Skovranko w/ the intent to gratify the sexual desires of the Appellant. Did, btwn on or abt 1 Aug 02 and on or abt 1 Oct 03, take indecent liberties with Samuel E. Hester, a male under 16 yrs of age, not the spouse of the said Appellant, by exposing pornographic images to the said S. E. Hestler w/ intent to appeal to the sexual desires of the Appellant. Did, btwn on or abt 1 Aug 02 and on or abt 1 Oct 03, wrongfully communicate to H. A. Skovranko, a threat to kick and punch her if she told P. J. Skovranko, Stacy L. Skovranko, Gloria Page 4/25

NG

NG#

NG

NG#

NG

NG#

Ehlers, or Randy J. Hester how the Appellant had touched her. On 21 Aug 07 Appellant was sentenced to confinement for twenty-five (25) years, reduction to E-1, forfeiture of all pay and allowances and a dishonorable discharge. The Convening

Authority approved the sentence, except for the discharge, and reduced the sentence to 19 years as a matter of clemency. Appellant petitioned the NMCCA. The NMCCA affirmed the trial court's decision on 30 June, 2009 by a two to one divided opinion. Pursuant to the Order of this Court, the undersigned military counsel hereby file a Supplement to the Petition for Grant of Review under Rule 21. STATEMENT OF THE FACTS Appellant and his ex-wife Gloria moved to Camp Pendleton, CA in 2001. R. at 259. Gloria had two children from a prior

relationship, Randi and Samuel Hester, who lived with Appellant and Gloria. R. at 260. At the time of the alleged crimes, R. at 254.

Randi and Samuel were about 12 and 8, respectively.

Appellant’s family became friendly with their neighbors, PR2 Paul Skovranko, USN, his wife Stacy and daughter, HS. 262. R. at

Appellant’s family moved from their home at Alderwood R. at 264. Pinyon

Drive to Pinyon Drive in April of 2003. Drive was a two-floor home. R. at 264. Page 5/25

In October of 2002

Appellant baby-sat HS alone in a single-story home. 326.

R. at 316,

Months after the Skovranko family moved from Pendleton, Gloria's children, who were no longer living with Appellant, visited the Skovranko home. R. at 319. At this time, Randi

Hester inquired into why HS was scratching her private area and offered to speak with HS privately to help determine the cause of HS's behavior. R. at 111. Following this private

discussion, Randi informed Mrs. Skovranko that HS had alleged criminal misconduct by Appellant. R. at 111, 350.

The Skovranko's later brought their daughter to the hospital, and eventually involved NCIS. R. At 309. During this time the

child recanted as to the truth of her allegations on multiple occasions. R. at 114. After these events, HS was eventually R.

interviewed and video taped concerning the allegations made. at 293.

At this time HS stated various facts which contradicted

both her later testimony and reality. Following these allegations, NCIS Special Agent (SA) Eric R. Meulenberg interviewed Appellant. R. at 280. SA Meulenberg

testified that during this interview appellant stated that once, while masturbating, HS walked in on him and he promptly pushed her out from the room. R. at 295. Appellant denied any form of

criminal behavior, and upon realizing the severity of the Page 6/25

charges brought against him promptly requested to speak with an attorney. R. at 295.

HS was eight years old when she testified at trial about sexual abuse that occurred four years prior to trial. 344, 345. R. at

During her testimony, HS twice stated the factual

allegations of the Appellant's charge, both times in the same words and in the same mechanical order. R. at 347-348. No

other evidence was offered to support the charges of which Appellant was convicted. When asked to provide any detail or context to the acts asserted HS repeatedly answered that she could not remember and she did not know. R. at 351-358.

Those additional facts necessary for disposition of the assigned errors are discussed below. SUMMARY OF THE ARGUMENT When evaluating the evidence in its totality, taking into account HS's numerous inconsistencies, contradictions and insufficient memory and the absence of an admission by Appellant, it is clear that the evidence is legally insufficient to support Appellant's conviction. That the trial court's

decision was to the contrary is reflective of the failure of both the Appellant's legal counsel to provide effective assistance and the prejudice Appellant faced as a result of both

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prosecutorial misconduct and having been charged with a multiplicity of counts not merited by the evidence. A grant of review will allow the Appellant an opportunity to demonstrate that which the record makes clear: The prosecution

failed to meet its burden of proof and as a matter of law the evidence is insufficient to support Appellant's conviction. ARGUMENT I. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE I. Standard of Review: This Court determines the legal sufficiency of the evidence de novo. United States v.

Chatfield, 67 M.J. 432, 441 (C.A.A.F. June 26, 2009) citing United States v. Young 64 M.J. 404, 407 (C.A.A.F. 2007). When

the legal sufficiency of the evidence supporting a conviction is challenged on appeal, the test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). Jackson v. Virginia,

A conviction cannot be based upon

uncorroborated testimony given by a victim in a trial for sexual offense if the testimony is self-contradictory, uncertain, or improbable. U.S. v. Arias, 3 M.J. 436 (CMA 1977). The two elements of Charge I, sodomy, that the Page 8/25

Discussion:

Government were required to prove are: (1) that the Appellant engaged in “unnatural carnal copulation with another person” and (2) “that the act was done with a child under the age of 12.” Article 125, UCMJ. The Government relies primarily on the testimony of HS and the alleged admission of appellant to support its conviction of Appellant. This section demonstrates that the evidence relied

upon by the Government is on its face factually insufficient as a matter of law to support Charge I. A. AS A MATTER OF LAW HS'S TESTIMONY IS FAR TOO INCONSISTENT, CONTRADICTED AND VAGUE TO SUPPORT APPELLANT'S CONVICTION. Discussion: A court's “decision to credit a witness's testimony over that of another can almost never be clear error unless there is extrinsic evidence that contradicts the witnesses story or the story is so internally consistent or implausible on its face that a reasonable fact finder would not credit it.” United States v. Heath, 58 F.3d 1271, 1275 (8th

Cir. 1995) citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985). i. HS'S TESTIMONY IS TOO INCONSISTENT WITH PRIOR STATEMENTS TO SUPPORT APPELLANT'S CONVICTION. HS's tender age should not create an impenetrable wall by which her credibility remains intact regardless of overwhelming Page 9/25

evidence to the contrary.

Leaving aside HS's numerous

recantations, several instances of HS's inconsistencies are: (1) HS recalled no aspect of the incident other than the five asserted facts made in direct support of the charges R. at 348.8

; (2) HS failed to recall several substantive factors asserted in her first NCIS interview, namely sexual violations, physical assaults and facts circumstantial to the incident Exhibit III –

R. at 1.3.1; (3) When interviewed by Dr. Philip W. Esplin, HS stated that there was only one assault and that it occurred in the second-story bedroom. See video from Exhibit AE XIII (10 of 10). During the trial, HS testified that the incidents occurred R. at 354.

in both the bathroom and the bedroom. ii.

HS'S TESTIMONY IS TOO CONTRADICTED BY EXTRINSIC EVIDENCE TO SUPPORT APPELLANT'S CONVICTION.

HS's contradictions are: (1) When first interviewed and when testifying, HS described the incident as taking place upstairs (R. at 351), however, the scene of the alleged incident was in a single story home (R. at 316, 326); (2) HS testified that her mother picked her up after the incident, however, HS's mother testified that Appellant returned child home (R. at 326-327); (3) When interviewed, HS testified that Gloria Ehlers walked in on the incident. See NCIS's result of forensic interview of Ms.

8 When requested to provide any detail to contextualize the incident asserted witness answered repeatedly with “I don't know” and “I don't remember.” R. at 350-358.

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Skovranko 15 JUN 04:

AE 7, pg. 11, paragraph 9.

But Gloria These

Ehlers testified this never occurred. (R. at 269-270)

numerous contradictions prohibit a reasonable trier of fact from finding HS's testimony credible. iii. AS A MATTER OF LAW HS'S MEMORY OF THE ALLEGED INCIDENT IS TOO WEAK TO SUPPORT APPELLANT'S CONVICTION. HS's testimony was not made from memory, but rather from a story external to her own personal knowledge. In U.S. v. Owens-

El, 889 F.2d 913 (Cal. 1989), the court found a sufficient showing that an assault victim's out-of-court identification of defendant was based on personal knowledge to justify submission for three reasons.9 First, there was physical evidence

corroborating the victim's direct observation of the attacker. Second, the detail included in victim's description of attacker suggested he remembered it at the time of interview. And

finally, the victim testified at trial that at the time of the interview the attack was vivid in his mind. Applying these

three factors to HS's testimony, the testimony fails the personal knowledge test. physical evidence. First, there is no corroborating Second, the witness's

R. at 314.

descriptions of the incident during the interview and while
9 Appellant notes that the question at hand is not the admissibility of hearsay evidence, but nonetheless holds the tools of analysis utilized by the Owens court as useful for purposes of establishing lack of personal knowledge as a matter of law.

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testifying is contradicted and inconsistent, which demonstrates a lack of recollection both at the time of the incident and at the time of trial. (See Section I, supra.) Finally, HS's

testimony on its face illustrates an inability to recall the events. R. at 355-356.

HS could not recall the most basic details of either the incident or the existence of a similar incident which occurred at the time of the alleged incident. Evidence of HS's faulty

memory are: (1) HS was sexually assaulted by a young boy named James two weeks after the alleged incident took place with Appellant. R. at 310-311, 320. When questioned about this

event, she did not recall the event (R. at 350.); (2) When questioned about the details of the incident itself, e.g. the event's duration, the order of the events, any detail other than that which was central to the conviction, her response was that she could not remember; (3) When asked how she was sure of the facts she had alleged, HS replied, “Because when I was little I knew that he did it because I saw him.” (R. at 351-357)10 Thus,

HS testified not from personal knowledge of the event, but
10 This statement is particularly telling of HS's conception of her testimony as her words express a mind lacking first hand knowledge of the events described. The basis for her knowledge is not that she witnessed or remembered the events, but that when “she was little she knew.” This may be written off as a mere poor choice of words. They should be considered no more and no less credible than the rest of her testimony since words are the only tools we have for the conveyance of thoughts and it is likely that the words chosen by HS did indeed express the reality of her own thought processes. This statement coupled with the inability to recall any other aspect of the incident and the numerous contradictions and inconsistencies that exist in respect to HS's testimony demands that her testimony be held non-credible as a matter of law.

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rather from a memorized story external to that of personal knowledge. B. THE EVIDENCE OF THIRD PARTY SUGGESTION IS TOO OVERWHELMING TO HOLD MS. SKOVRANKO'S TESTIMONY CREDIBLE. As noted by Justice Scalia, there are “‘special’ reasons” to be suspicious of child testimony, for “studies show that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected fantasy (or suggestion) from reality.” Maryland v. Craig, 497 U.S. 836, 868 This Court should acknowledge

(1990) (Scalia, J., dissenting).

that sociological research validates the notion that a child's vulnerability to suggestion should be considered when weighing the credibility of a child’s testimony, especially where there are numerous contradictions and inconsistencies in the story put forward by the child and evidence of third party suggestion. Several pieces of evidence which reflect the presence of third-party suggestion are: (1) HS did not make any allegation in respect to Appellant until after Ms. Randi Hester spoke to HS alone (R. at 111.); (2) HS's numerous recantations reflect an uncertain mind (R. at 114.); (3) At the end of a video

interview, HS states, “I want to thank you for telling me what [Mr. Eddie] did [to me].” See video at (47 min) from Exhibit AE XL; (4) When HS was asked whether she had been told what to Page 13/25

say, HS answered yes;(5) HS concedes that her knowledge of the event is third person: “Because when I was little I knew that (R. at 351-357.); (6) HS repeated

he did it because I saw him.”

the allegations in a mechanical fashion and offered answers to unasked questions which were unlikely to have originated in the mind of a child.11 C. R. at 348.

ALLEGED APPELLANT'S ADMISSION IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION. Inferences may be properly drawn from the evidence but to be

reasonable an inference must not be based on mere conjecture and speculation. United States v. Atencio, 435 F. 3d 1222, 1232 The Government argues Appellant conceded that

(10th Cir. 2005).

he masturbated while HS was only a few feet away and watching, and then slapped her on the bottom and continued to masturbate. R. at 288. But this is a gross misrepresentation of the

admission actually made as presented by the Government's witness. The NCIS investigator testified that the admission

made by Appellant was not that he masturbated in front of HS, but only that he was walked in on by HS and responded by pushing her out from the room. R. at 300. That the evidence put

forward by the NCIS interviewer testimony amounted to an admission of guilt is on its face unsupported by the facts of
11 Appellant testified twice without being asked, “...and I'm not sure what it tasted like or what happened after that.” R. at 348.

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the investigator's own testimony. II. THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO CONVICT APPELLANT OF CHARGE II.

Article 134 requires that the element of “intent to gratify the sexual desires” of the accused be proven in order for a conviction. As noted above, the ROT reflects that the admission

made by the appellant was that he was walked in on and then pushed HS from the room. That the Appellant conceded to guilt

and embarrassment in response to having been walked in on by HS, does not imply that the Appellant engaged in criminal behavior. Thus, Charge II must be supported by HS's testimony alone. For the reasons discussed above, HS's testimony should be held as a matter of law insufficient. III. APPELLANT WAS PREJUDICED BEFORE AND DURING THE TRIAL BY THE MILITARY'S MISCONDUCT. A. Detailed Defense Counsel's performance was so deficient that it fell well below the level of competency under Strickland that it prejudiced Appellant's right to a fair trial. Standard of Review: A determination regarding the

effectiveness of counsel is a mixed question of law and fact. The factual findings of the military judge are reviewed under a clearly erroneous standard, and the ultimate determinations whether the representation was ineffective and, if so, whether

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it was prejudicial are reviewed de novo. 45 M.J. 461, 463 (C.A.A.F. 1997). Discussion:

United States v. Wean,

Both the Sixth Amendment and Article 27, UCMJ,

guarantee an accused the significant right to effective assistance of counsel. Appellant was denied the effective

assistance of counsel by his original detailed defense counsel (hereinafter “DDC”), LT Michael Melocowski and LT S.P. Gonzales.12 Before and during the trial, DDC performed below the First that the And second, said

standards required by the Strickland test:

detailed counsel's performance was deficient.

deficiency prejudiced the appellant’s ability to get a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).

In United States v. Grigoruk, the defendant was convicted of rape, sodomy, and indecent acts with a child under the age of 16. United States v. Grigoruk, 52 M.J. 312 at 313 (2000). The

defendant raised on appeal that he was denied effective assistance of counsel because his defense counsel failed “to call an expert witness who would provide credible evidence that supported the Defense's theory of the case.” Id.

In Appellant's case, child abuse expert, Dr. Philip W. Esplin, was obtained, but never called to testify. (R. 144-200.) Like

12 Appellant acknowledges that this fact is not in the record. However, Appellant holds that since the evidence was unavailable at the time of litigation due to DDC's ineffective assistance of counsel and Prosecution's misconduct, it should nonetheless be considered in order that Appellant not be denied his due process of law and fair play. Thus, this Court should not take its normal actions pursuant to Rule 30 (a) and consider these facts.

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in Grigoruk, Appellant's case was a credibility contest between Appellant and HS. Like in Grigoruk, the accuser was eight years

of age recalling an event(s) that occurred earlier in her childhood. Appellant like the Defendant in Grigoruk maintained Thus, like in Grigoruk, this court should hold

his innocence.

DDC's performance as ineffective assistance of counsel. DDC failed to provide effective assistance of counsel in failing to impeach the only testimony which could possibly serve as the grounds for Appellant's conviction despite an overwhelming amount of evidence available for impeachment. B. Prosecution's deliberate and questionable actions so undermined the Defense that it prejudiced Appellant's right to a fair trial. The prosecution interfered with Appellant's defense, depriving Appellant of his Fifth Amendment Right to Due Process and Sixth Amendment Right to Compulsory Process. “In assessing prejudice,

we look at the cumulative impact of any prosecutorial misconduct on the accused's substantial rights and the fairness and integrity of his trial.” United States v. Edmond, 63 M.J. 343,

350 2006 CAAF LEXIS 1053 citing United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005). In the case sub judice, a member of the prosecution, CPT Ellis, contacted two of Appellant's potential witnesses. CPT

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Ellis identified himself as a member of the defense team and informed them that the Appellant had confessed to the charges. These inappropriate actions cause Appellant to give pause as to what other potential defense witnesses were interfered with. The overall issues of prosecutorial misconduct is compounded by a fairly recent discovery regarding Assistant Trial Counsel Major Plummer. An inquiry by Mrs. Ehlers to the JAG revealed that Major Plummer is only licensed in Indiana.13 Mrs. Ehlers

pursuit of this inquiry led her to discover that Major Plummer has been suspended from the practice of law since 2002.14 JAG regulations require that any JAG Officer be in “good standing” in at least one state bar. The prosecution failed to inform defense that Randi Hester had informed prosecution on the day of trial that she intended to testify that the story put forward by both HS and other witnesses for the prosecution was false.15 See Barbee v. Warden

MD, Penitentiary, 331 F.2d 842, 845 (1964)(holding that where there is evidence that tends to exculpate defendant the prosecution is obliged to disclose such evidence). At minimum,

a DuBay hearing should be held to investigate the Government's conduct.
13 See FN 12. 14 See FN 12. 15 See FN 12.

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IV.

APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE PROSECUTION'S ACTS OF UNLAWFUL COMMAND INFLUENCE.

Congress and this Court are concerned not only with eliminating actual UCI, but also with "eliminating even the appearance of UCI at courts-martial." United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979). “Thus, the appearance of [UCI]

will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.” United States v. Lewis, 63 M.J. 405, 415 (2006). For the reasons stated in subsection B, supra., Appellant asserts that the Prosecution has committed UCI. V. CHARGES I AND II AND ADDITIONAL CHARGES I AND II AND ALL OF THEIR SPECIFICATIONS CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES. "[T]he principle prohibiting unreasonable multiplication of charges is one that is well established in the history of military law . . . ." United States v. Quiroz, 55 M.J. 334,

336-37 (C.A.A.F. 2001) (quoting United States v. Quiroz, 53 M.J. 600, 605 (N-M. Ct. Crim. App. 2000)). The prohibition against

unreasonable multiplication of charges (hereinafter “UMC”) addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion. Id. at 337. Page 19/25

C.A.A.F. approved the non-exclusive list of factors the NMCCA considered in determining if there was a piling on of charges and if that piling on was so extreme or unreasonable as to necessitate relief under the Court’s Article 66(c), UCMJ authority. 55 M.J. at 339. Those factors are: (1) "Did the

accused object at trial that there was an unreasonable multiplication of charges and/or specifications?"; (2) "Is each charge and specification aimed at distinctly separate criminal acts?"; (3) "Does the number of charges and specifications misrepresent or exaggerate the appellant's criminality?"; (4) "Does the number of charges and specifications unreasonably increase the appellant's punitive exposure?"; and (5) "Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?" Id.

Applying the Quiroz factors to the facts of this case, it is clear that Charge I, Specifications 1, 2, 3, and 4 of Charge II, Additional Charge I, and Specification 2 of Additional Charge II represent an unreasonable multiplication of charges. The Government did not provide evidence sufficient to infer that the acts alleged were separate events. This over charging by the

Government misrepresented Appellant’s actions and unreasonably exaggerated his criminality, as prohibited by the third Quiroz factor. Page 20/25

The Government also unreasonably increased the Appellant’s punitive exposure. A court is limited in the amount of

punishment it may assess; “a convicted service member has a right not to carry on his record [two] convictions for what is essentially a single offense.” United States v. Nelson, 2003

CCA LEXIS 249 (A.F. Ct. Crim. App. 2003) citing United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); United States v. Britton, 47 M.J. 195, 202 (C.A.A.F. 1997). Appellant was clearly prejudiced in that he received two additional convictions that he should not have otherwise received. See United States v. Frelix-Vann, 55 M.J. 329, 333

(C.A.A.F. 2001) citing United States v. Ball, 470 U.S. 856, 86465 (1985) (“the second conviction, even if it results in no greater sentence, is an impermissible punishment.”). Appellant’s conduct should have been charged in one specification stating that he (may have) engaged in indecent liberties with HS. VI. CHARGE I AND CHARGE II ARE MULTIPLICIOUS AS A MATTER OF LAW.

Multiplicity, a Constitutional violation under the Double Jeopardy Clause, occurs if a court, "imposes multiple convictions and punishments under different statutes for the same act or course of conduct." United States v. Paxton, 64 M.

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J. 484, 490 (C.A.A.F. 2007) quoting United States v. Teters, 37 M.J.370. 373 (C.M.A. 1993). Since appellant failed to raise the

issue of multiplicity as to the offenses referred for trial, it is waived so long as the specifications are not facially duplicative. United States v. Heryford, 52 M.J. 265, 266

(C.A.A.F. 2000) citing United States v. Britton, 47 M.J. 195, 198 (C.A.A.F.1997). Review of the sodomy specification under

Charge I reveals that it is facially duplicative with the indecent liberties specifications under Charge II, because the facts apparent on the face of the record are based upon the same conduct. United States v. Barner, 56 M.J. 131, 137 (C.A.A.F.

2001) citing United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998); United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997). In United States v. Barner, the Court held that where charges were associated with separate times and persons multiple charges were not on their face duplicative. M.J. 131, 137. United States v. Barner, 56

In Appellant's case, HS testified to only a

single incident presented as a single course of conduct.16 This, coupled with an absence of evidence portraying the course of conduct as two separate incidents, shows that plain error exists in relation to conviction of specification under both Charge I
16 Prosecuting attorney asks HS to repeat herself. In response she lists all offensive acts as a single incident.

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and Charge II. VII. APPELLANT'S SENTENCE FOR TWENTY-FIVE YEARS WAS SO UNDULY DISPROPORTIONATE THAT IT MUST BE SET ASIDE. Under R.C.M. 1002, a court-martial may impose any sentence, including the maximum sentence authorized by law, or no punishment at all. Appropriate sentences, however, result from

an individualized consideration of the nature and seriousness of the offense and the character of the offender. United States v.

Snelling, 14 M.J. 267, 268 (C.M.A. 1982) citing United States v. Mamaluy, 10 C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81 (1959). C.A.A.F. has recognized that the applicable standard of review as, “whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary ‘sentence appropriateness’ role.” United States

v. Barraza-Martinez, 58 M.J. 173, 176 (2003) citing United States v. Durant, 55 M.J. 258, 260 (2001). At the service court level, the appellant bears the burden of demonstrating sentence disparity. M.J. at 288. United States v. Lacy, 50

If the appellant meets that burden, the Government

must then demonstrate that the disparity or inappropriateness has a rational basis. Id. A cursory review of recent appellate

opinions involving similar charges underscores the inappropriateness of Appellant’s maximum sentence: Page 23/25

In United States v. Rodriguez-Rivera, 60 M.J. 843 (2005),

a

defendant convicted at a general court-martial of making false official statements, committing forcible sodomy on a child under twelve, taking indecent liberties with a female under the age of sixteen, and committing indecent acts with a female under the age of sixteen was sentenced to confinement for twelve years, inter alia. In United States v. Stone, 2004 CCA LEXIS 251 (2004), the defendant had been convicted convicted of sodomy with a child under the age of 12 years by force and without consent and indecent acts with a child under the age of 16 years and not his spouse and was sentenced to 13 years confinement. In United States v. Cuento, 60 M.J. 106 (2004), A defendant was convicted by a general court-martial of assault consummated

by battery on a child under the age of 16 years and indecent acts with a child under the age of 16 years and was sentenced to four years confinement, inter alia. As these cases amply demonstrate, Appellant’s sentence was wildly disproportionate, particularly for a sailor with an unblemished service record. REASON FOR GRANTING REVIEW This Court should grant review of the issues presented because

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the NMCCA decided questions of law in a way that conflicts with applicable decisions of this Court. See Rules 21 (b) (5) (B)&

(E) of this Court's Rules of Practice and Procedure. The NMCCA decided issues I and II in this case by a divided vote. Conclusion WHEREFORE, Appellant prays that this Court grant review of his case.

Respectively Submitted, /s/ Michael D.J. Eisenberg Michael D.J. Eisenberg 700 12th Street, NW; Suite 700 Washington, DC 20005 O: (202) 558-6371 F: (202) 403-3430 CAAF Bar #33677 michael@eisenberg-lawoffice.com Counsel for the Appellant PVT Edwin Ehlers

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CERTIFICATE OF FILING AND SERVICE I certify that the foregoing was e-mailed to the following: C.A.A.F. Clerk efiling@armfor.uscourts.gov Government Prosecution Captain Robert Eckert Robert.Eckert@navy.mil Government Detailed Appellant Counsel LT Sarah Harris 1254 Charles Morris St SE Suite 100 Washington Navy Yard sarah.harris@navy.mil 202/685-7726

Respectively Submitted, /s/ Michael D.J. Eisenberg Michael D.J. Eisenberg 700 12th Street, NW; Suite 700 Washington, DC 20005 O: (202) 558-6371 F: (202) 403-3430 CAAF Bar #33677 michael@eisenberg-lawoffice.com Counsel for the Appellant PVT Edwin Ehlers (E-file/E-mail on 10/16/09