IN THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS UNITED STATES, Appellee

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 200800190 Review of Petition for Extraordinary Relief in the nature of a Writ of Habeas Corpus under the All Writs Act, 28 U.S.C. § 1651(a)

v.

Edwin A. Ehlers II Sergeant (E-5) U.S. Marine Corps, Appellant

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS Issues Presented
I.

WHETHER ALL CHARGES AND SPECIFICATIONS UNDER ARTICLE 134 FAIL TO STATE AN OFFENSE IN LIGHT OF UNITED STATES V. FOSLER II. WHETHER APPELLANT’S SIXTH AMENDMENT RIGHTS WERE VIOLATED III. WHETHER THE MILITARY JUDGE ABUSED HIS AUTHORITY BY ALLOWING A CIVIL RIGHT TO BE IGNORED
IV.

WHETHER THE GOVERNMENT WITHHELD EXCULPATORY EVIDENCE IN VIOLATION OF BRADY
V.

WHETHER AMBIGIOUS

THE JUDGE’S FINDINGS AT THE COURT-MARTIAL ARE

VI. WHETHER NCIS FAILED TO FOLLOW ESTABLISHED DEPARTMENT OF DEFENSE DIRECTIVES VII. WHETHER NCIS AGENT’S ADMISSION OF TAMPERING EVIDENCE VIOLATES APPELLANT’S CONSTITUTIONAL RIGHTS 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 court’s jurisdiction; rather, relief is appropriate only when “in aid of {this court’s} existing statutory jurisdiction.”1 The issuance of a writ is “a drastic remedy that should be used only on truly extraordinary situation.” 2 The petitioner must show that he has a “clear and indisputable right” to the extraordinary relief requested.”3 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.4 An extraordinary writ can lie for factual, constitutional, and fundamental errors, to include “the impact of new law on a decision.”5 An extraordinary writ should only be used to correct “errors of the most fundamental character.”6 Because this petition raises a claim concerning the validity of the findings and/or sentence of the petitioner’s court-martial, this court WITH

Denedo v. United States, 66 M.J. 114, 120 (C.A.A.F. 2008) Aziz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R. 13) (citations omitted). 3 Denedo, 66 M.J. at 126 (citing Cheney v. United States Dist. Ct. 542 U.S. 367, 381 (2004)). 4 Id. At 125. 5 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). 6 Loving, 62 M.J. at 253 (citations omitted).
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posses the jurisdiction to entertain the petition for extraordinary relief.7 In raising allegations of error on collateral review, a habeas petitioner must show that “he has a clear and indisputable right to the extraordinary relief that he has requested.”8 Because this petitioner’s claim is constitutionally grounded, this court applies both the scope and standard of review adopted by the Court of Appeals for the Armed Forces (CAAF) in Loving.9 In Loving, the CAAF adopted the standard of review legislated by Congress in 28 U.S.C. § 2254(d) for a habeas petition alleging constitutional error.10 Therefore, this court must determine whether the petitioner’s trial: (1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the {prior} proceeding. For the above reasons, this court has the statutory jurisdiction to hear appellant’s habeas writ.

STATEMENT 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: 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 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 Denedo, 66 M.J. at 120. Fisher, 56 M.J. at 692. 9 Loving v. United States. 10 Id. at 145.
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64 M.J. 132 C.A.A.F. 2006
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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 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 Appellant, by slapping her on the buttocks while masturbating w/ the intent to gratify the sexual desires of the Appellant found Not Guilty but Guilty of the lesser included offence of Assault Consummated by a battery Art 128 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 in February 2008 and approved sentence, with exception to the discharge, and reduced sentence by 6 years as a matter for clemency. the the

Navy-Marine Corps of Criminal Appeals acted In June 2009 and approved the sentence, but Judge 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.

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 appellant’s ex-wife, who was the first person to hear the allegations, HS would only say that “he” touched her. Randi Hester assured HS that it’s ok to say who did it, and HS told Randi Hester that “her mommy would be mad at her”. Later that morning after 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 say anyone’s name. Mrs. Stacey Skovranko asked HS if it was Appellant that did this to her and HS agreed with her mother’s dictation. At that point, Stacey
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Skovranko realized Randi Hester was in the room and Randi Hester was then told to leave so Stacey Skovranko could question her daughter alone.11 Later that afternoon, Petty Officer Paul 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, even thought it was Stacey who told the child it was Appellant who did this to her (NOTE: Randi Hester stated that HS never said who did this to her until Mrs. Skovranko told her Appellant’s name). Petty Officer Skovranko said that he told his CO, Chaplain Gibson what Mrs. Skovranko had told him, and that Chaplain Gibson said to take HS to the Beaufort Naval Hospital. Petty Officer Paul Skovranko came home from work and proceeded to question HS about her allegations. Petty Officer Skovranko told his wife Stacey not to come into the room when he questioned HS alone, for the 3rd time that day regarding her allegations. Around 4:45pm, several hours after returning home, RP2 Paul Skovranko took HS to the Beaufort Naval Hospital. Petty Officer Paul 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 Paul Skovranko stated he signed HS into the ER, was escorted to an exam room where her vitals were taken, and was left alone there for several hours without a doctor coming into examine her. While waiting, Petty Officer Paul 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. Petty Officer Skovranko was never at the hospital in June 2004 nor was the alleged victim, H.S. Lt Burch, under a request through the FAP aboard Parris Island, stated in an e-mail to Appellant’s attorney that the child was NEVER there in the month of June 2004.12 Upon arriving at home around 7 pm, Petty Officer Paul Skovranko told his wife, Stacey Skovranko that no one would treat their daughter at the Beaufort Naval Hospital. He then stated to NCIS
11 12

See attachment 1 See attachment 2
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he ordered dinner, called friends and family, and then around 9pm called the PMO. June 3, 2004 Petty Officer Paul Skovranko contacted NCIS to report the allegations made against Appellant. RP 1 Skovranko and his wife Stacey Skovranko went to the Parris Island NCIS building and each gave a sworn statement to NCIS regarding the allegations that their daughter had told them about the previous day. Both parents stated that HS told them Appellant had touched her, raped her, and spanked her. 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 (former wife of the accused) and a boy named James witnessed the alleged sexual assault. HS told NCIS 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”. June 24, 2004 Randi Hester and her mother, Gloria Ehlers, were interviewed by 2 NCIS agents at their home. Randi told the NCIS agents that after she spoke to HS, Stacey asked HS who did this to her, but HS refused to state anyone’s name. Randi said that Stacey asked if Appellant was the one who did this to her and HS answered yes. Otherwise Appellant name was never mentioned. Gloria Ehlers was interviewed at the same time as Randi Hester. Gloria was asked several things regarding Appellant but was never asked if she witnessed the alleged sexual assault. NCIS agents were aware of the allegations against Gloria Ehlers 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. Private Ehlers claimed his innocence with regards to the allegations against him and Appellant volunteered to take a polygraph examination. 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 H” when he was 12 years old and she was 6 years old. After the alleged “confessions” Special Agent Muelenberg did not ask for
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pretrial confinement nor did he video tape the admission or get a signed confession. The Article 32 hearing was conducted in February 2007. During the hearing, Appellant was asked if he recognized the drawings that were submitted by Special Agent Muelenberg to which he replied no, he had never seen them until that day when his defense attorney showed him shortly before the hearing. 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 and if HS said that then she would be lying. Gloria Ehlers also admitted that these accusations against Appellant started when she and Appellant were getting divorced and she was “mad at him”. Her “friends”, the Skovranko’s were aware of the divorce and were aware of Gloria’s financial problems since Appellant decided to divorce her. Mrs. Skovranko’s 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. Stacey Skovranko also admitted in her sworn statement that she and Randi Hester had stayed up and talking all night before HS’s admission that someone had touched her. Stacey said that she and Randi talked about Gloria and her financial troubles since the separation and pending divorce of her and Appellant. 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 he was never at the hospital in June 2004-according to the hospital records. Special Agent Muelenberg admitted 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. 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;

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he stated that his word should be good enough. A NCIS report of investigation dated 8/1/06 shows that there was NO CONFESSION.13

BRIEF AND ASSIGNMENTS OF ERROR WHETHER ALL CHARGES AND SPECIFICATIONS UNDER ARTICLE 134 FAIL TO STATE AN OFFENSE IN LIGHT OF UNITED STATES V. FOSLER Appellant’s 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, UCMJ. To establish a violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), 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 article’s three clauses has been met: that the accused’s 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.”14 The three clauses of Article 134 constitute “three distinct and separate parts.”15 An accused must be given notice as to which clause or clauses he must defend against. As the Court of Appeals for the Armed Forces (C.A.A.F.) 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.”16 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 court’s task is to determine whether the terminal element was See attachment 3 United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) 15 United States v. Frantz, 2 C.M.A. 161, 163, 7 C.M.R. 37, 3 (1953) 16 Medina, 66 M.J. at 26
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necessarily implied.17 To do so, this court must interpret the text of the charge and specification. In contested cases, then 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.18 Following the example in Fosler, Appellant’s 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. In a contested case, the inclusion of “Article 134” in the charge does not imply the terminal element. The words “Article 134” do not, by definition, mean prejudicial to the “good order and discipline,” “of a nature to bring discredit upon the armed forces,” or a “crime or offense not capital.” 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.19 Under principles of stare decisis, the court examines “intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law.”20 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 subsequent decisions of the {Supreme} Court.”21 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

See R.C.M. 307(c)(3) United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986) 19 Cf. Watkins, 21 M.J. ar 209-10. 20 United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995) 21 United States v. Gaudin, 515 U.S. 506, 521 (1995).
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the elements test.22 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.23 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 notified which of the three clauses he must defend against, the terminal element must be set forth in the charge and specification. Because of the government’s failure to state at least one of the three elements, we are asking this court to uphold the Court of Appeals for the Armed Forces (C.A.A.F.) previous decision in Fosler.

APPELLANT’S SIXTH AMENDMENT RIGHTS WERE VIOLATED 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.”

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See Schmuck, 489 U.S. at 716-21 See Medina, 66 M.J. at 24-25
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This delay is a violation of R.C.M. 707(a), Manual for Courtsmartial (ed. 2008) where it clearly states that the accused will be brought to trial within 120 days. 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. Wingo24: 1. Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial", but the Court has never explicitly ruled that any absolute time limit applies. 2. Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations. 3. Time and manner in which the defendant has asserted his right: If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed. 4. Degree of prejudice to the defendant which the delay has caused. In Strunk 25, 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. The Court has held that, since the delayed trial itself is the state 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 MILITARY JUDGE ABUSED HIS AUTHORITY BY ALLOWING A CIVIL RIGHT TO BE IGNORED

24

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Barker v. Wingo, 407 U.S. 514 (1972) Strunk v. United States, 412 U.S. 434 (1973)

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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 that 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.”26 The actual statement made by Special Agent Eric Muelenberg does not appear in any copy of the record of trial yet, by not considering the statement made my Special Agent Muelenberg, the judge has violated appellant’s Art 31, UCMJ and Miranda rights and abused his authority as the finder of fact under RCM 902(a). Once this information was brought to the attention of the Government, the recordings from the court-martial were destroyed in March 2011.27 In the military, the accused enjoys not only the protections of Article 31, but also the Supreme Court’s mandate from Miranda.28 When enacting Article 31, Congress sought a procedural mechanism to protect a service member’s constitutional right against selfincrimination when confronted by the subtle pressure inherent in superior-subordinate relationships within the military. It is believed that subordinates, if questioned by a superior, would feel compelled to respond, even to the point of admitting to a crime they had not committed.29 When the process shifts from investigatory to the accusatory-when its focus is on the accused and its purpose is to elicit a confession, our adversary 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 Record at 378 See attachment 4 28 United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). 29 United States v. Armstrong, 9 M.J. 374, 378(C.M.A. 1980)
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an attorney questioning.”

30

before

speaking

there

can

be

no

further

In the case of United States v. Riley,31 an agent of the Naval Criminal Investigative Service, testifying at Riley’s courtmartial, made reference to the accused’s 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.32 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.”

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 appellant’s failure to object. The court noted that the doctrine of forfeiture does not apply where there is plain error.33 The court also observed that to demonstrate plain error, an appellant has the burden of showing the appellate court that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2nd 2d 694 (1966). 31 United States v. Riley, 47 M.J. 27 (1997) 32 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 See Mil.R.Evid. 103(d), Manual for Courts-Martial and Art 59(a) Uniform Code of Military Justice (UCMJ).
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there was error, that it was obvious, and that "it affects a substantial right of the accused, i.e., it was prejudicial."34 In United States v. Riley, the court noted: “This tainted view is especially important when considered in connection with the nature of the Government’s 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 child’s 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 appellant’s 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.35

The failure of Naval Criminal Investigative Service (NCIS) Agents to comply with the mandates of the United States Constitution, as interpreted by the courts, results not only in the dismissal and loss of cases, but also the liability on the part of the officer, as well as the administrator and the agency. Failure on the part of the agency to properly train, or to enact and enforce guidelines that are consistent with the constitutional provisions, often results in civil actions.

THE PROSECUTION WITHHELD EXCULPATORY EVIDENCE The Prosecution wanted to talk to Randi Hester, a witness to the mother of the alleged victim telling the victim that it was appellant who committed this crime, and see if she (Randi) would change her story to match what HS and her family told NCIS. When Randi didn’t change her story about HS’s accusations-or 44 MJ at 675 (citing United States v. Prevatte, 40 MJ 396, 397 (CMA 1994)). 35 United States v. Riley, 1 MJ at 391 (1997)
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lack thereof-the prosecution would not let Randi Hester to take the stand and testify because she would have cast doubt the reasonable doubt the Government was trying to avoid. Randi Hester was available at the trial, flown out there by the Government specifically to testify. Randi Hester’s statement to NCIS, statements made to Petty Officer Paul Skovranko and his wife Stacey Skovranko were used against Appellant at trial and included in the Record of Trial, but appellant was never allowed to confront her on the stand. This is a violation on Appellant’ Sixth Amendment Rights under the Confrontation Clause. The defense must have an opportunity to "confront" and crossexamine witnesses. The Confrontation Clause relates to the common law rule preventing the admission of hearsay, that is to say, testimony by one witness as to the statements and observations of a person to prove that the statement or observation was accurate. The rationale was that the defendant had no opportunity to challenge the credibility of and cross-examine the person making the statements. Yet in Crawford36, the Supreme Court increased the scope of the confrontation clause in trials. The Court ruled that "testimonial" out-of-court statements are inadmissible if the accused did not have the opportunity to cross-examine that witness and that witness is unavailable at trial. "Testimonial" becomes a term of art here, meaning any statements that an objectively reasonable person in the declarant's situation would have deemed likely to be used in court. In Melendez37, the Court ruled that admitting a lab chemist's analysis into evidence, without having him testify, violated the Confrontation Clause. Appellant’ was further denied his rights when he was also not allowed to call Randi Hester as a witness for the defense because the defense was not aware that she was going to testify as to the truth of the allegations and her direct observations of Mrs. Skovranko telling the alleged victim the appellant’s name, when the alleged victim refused to provide the name on her own. The Government willfully ignored the fact that they were required to notify the Defense as to what each witness is supposed to testify about. It was also discovered, during the course of a post-trial investigation, that Petty Officer Paul Skovranko, the father of
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Crawford v. Washington, 541 U.S. 36 (2004) Melendez-Diaz v. Massachusetts, 557 U.S. (2009),
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HS (alleged victim), while visiting the hospital with his daughter, HS, was suspected of sexual assault and domestic violence by the Beaufort Naval hospital in December 2003, 7 months prior to HS coming forward with these allegations and that the government failed to disclose this information to the defense prior to the trial. This record was in the Government’s possession and known to NCIS investigators because they reviewed the child’s medical record in June 2004.38 NCIS also noted, in its own documents, that Appellant never gave a confession to this alleged crime. The document was also found post-trial and would call to question Special Agent Muelenberg’s testimony at the trial. The Government ignored the mandatory disclosure requirements of the Brady Doctrine and also did not disclose this information to the Defense. In order to prevail on a Brady claim, “one must establish the materiality of the exculpatory information suppressed by the prosecution.”39 In Agurs, the Supreme Court stated that such a failure to disclose violates due process “only if the omitted evidence creates a reasonable doubt that did not otherwise exist.”40 The standard of materiality in a case, such as this one, involving the prosecution’s suppression of impeaching evidence absent a specific request is discussed in Blasco. There the court notes “if the suppressed evidence was purely impeaching evidence and no defense request has been made, the suppressed evidence is material only if its introduction probably would have resulted in acquittal.”41 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.”42 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.”43 In Brady, the Supreme Court held that irrespective of the good faith or bad faith of the prosecution, suppression by the See attachment 5 U.S. v. Kopituk, 690 F.2d at 1289, 1353 40 Id. At 112, 96 S.Ct. at 2401 41 U.S. v. Blasco, 104 S. Ct. 275, 276 L.Ed.2d (1983) 42 Mooney v. Holohan, 294 U.S. 103 (1935) 43 Naupe v. Illinois, 360 U.S. 264 (1959)
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prosecution of material evidence, at the very least, required a new trial. Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. Per Brady, prosecutors have a duty to disclose exculpatory evidence even in 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 prosecution’s 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. Evidence is considered “favorable” to the defendant if it either helps the defendant or hurts the prosecution.44 It is up to the courts to ensure uniformity and consistency in meeting the constitutionally required discovery obligations under Brady. The military courts have repeatedly failed to do so and disregarded the Supreme Courts mandates in these types of cases. The definition of “material evidence” is generally provided in the context of an appeal from a conviction. Evidence is material if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. A reasonable probability of a different outcome is shown where the suppression undermines confidence in the outcome. Such evidence must have a specific, plausible connection to the case, and must demonstrate more than minor inaccuracies.45 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 government’s 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
44

in re Sassounian Cal.4th 535, 543-544 (1995), Strickler v. Greene 527 U.S. 203, 280-281 (1999) 45 See Kyles v. Whitley, supra; U.S. v. Bagley, supra; People v. Padilla, 11 Cal. 4th 891, 929-32 (1995); People v. Clark, 3 Cal. 4th 41, 133-34 (1992)
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body, equivalent to the finder of fact may determine what it would do on a different body of evidence.46 In Berry47, the Ninth Circuit concluded the Mesarosh analysis, the testimony in wholly discredited after trial but the v. Badger used a standard requiring clearly inconsistent with the evidence (Badger, 983 F.2d at 1457). that in order to invoke question must have been Seventh Circuit in U.S. that the testimony be discovered AFTER trial

Furthermore, the Eighth Circuit has held that in order for Mesarosh to apply, the testimony must have been brought into question due to accusations of perjury.48 Lastly, whereas the Eleventh Circuit has determined that the application of Mesarosh largely turns on whether the issue of falsity and tainted evidence was presented to the courts.49

THE JUDGE’S FINDINGS AT THE COURT-MARTIAL ARE AMBIGIOUS The Government’s 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.50 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.”51 Therefore, it is the military judge’s 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 conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review.”52 Because no clarification was made in appellant’s case,
46
47

48 49
50

51

Mesarosh, 352 U.S. at 5-6 U.S. v. Berry (624 F. 3rd at 1043) United States v Burns, 495 F.3rd 873, 874-75 (2007) United States v. Brunoehler, 714 F.2d 99, 101 (1983) Record of Trial pg 354 United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005)
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the charges must be dismissed under Walters53. In Walters, C.A.A.F. held that the findings of the military judge were ambiguous and therefore the lower court could not conduct a proper appellate review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006). According to C.A.A.F., in light of Walters and Seider54, the charges and specifications must be dismissed with prejudice, because the lower court could not conduct a proper appellate review under Article 66 and double jeopardy prevents a rehearing.55 “A finding on the guilt or innocence of the accused is not final until it is formally and correctly announced in open court.”56 “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.”57 C.A.A.F. 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 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.”58 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 Government charged the appellant with numerous acts under a diverse timeline. The Government argued that this happened numerous times, yet when the alleged victim testified, she stated all these acts allegedly happened on one occasion. The military judge verified with the alleged victim that all allegations happened on the same day, yet the military judge did not make a clear statement on the record as to which date formed
52

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) 53 United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) 54 United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) 55 See Wilson 56 United States v. London, 4 C.M.A. 90, 96, 15 C.M.R. 90, 96 (1954) 57 R.C.M. 922(d) 58 Wilson, 67 M.J. at 428 (citation omitted)
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the basis of the conviction under the Court of Appeals for the Armed Force’s explicit direction in Augspurger, Walters, Seider and Wilson. The military judge’s 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.”59 According to C.A.A.F., the only appropriate remedy for these violations at appellant’s court-martial, is to set aside the findings and dismiss the charges with prejudice. NCIS FAILED TO FOLLOW ESTABLISHED DEPARTMENT OF DEFENSE DIRECTIVES NCIS, upon hearing of these allegations, failed to notify the Family Advocacy Program (FAP) under Department of Defense Directive 6400.1.60 Notification of the FAP is a mandatory report to make once they received information regarding an alleged sexual assault, whether occurring on or off the base. This report to the FAP also notifies the local child protective agency and local law enforcement (in cases such as appellants), but who were never involved with Appellant’s investigation because they were never notified. In Accardi v. Shaughnessy, the court ruled: “the most reasonable remedy and the one followed by the courts whenever appropriate is to set aside the action that has taken contrary to the regulation and require further proceeding in compliance with the regulation.61 The basic case in field; and by the Court of Military Appeals in United States v. Dunks, supra (FN6), a recent military case based on Accardi. Such remedy is inappropriate, however, in the situations where once the action in noncompliance, there is no effective way the procedures can be rolled back and compliance required. The question then becomes one of prejudice to the accused as a result of the noncompliance.62 This court must look at what has been infringed and what has occurred because of the failure to follow the regulation.63 Criminal justice personnel are required to enforce state, federal, and local laws. They are bound by Wilson, 67 M.J. at 428 See attachment 6 61 US ex. Rel. Accardi v. Shaunghnessy, 347 U.S. 260, 74 S. CT. 499, 98 L. Ed. 68 (1954) 62 Peavy v. Warner, 493 F. 2nd 748 (5th Cir. 1974). 63 United States v. Torres, 3 M.J. 659, 662 (ACMR 1977). Id. At 662.
59 60

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oath to affirmation to support the Constitution of the United States. Although the Supreme Court has attempted to balance the power of the government and individual rights, if there is a conflict, the Constitutional Rights as interpreted by the United States Supreme Court takes precedence. SPECIAL AGENT MUELENBERG ADMITTED TO TAMPERING WITH EVIDENCE AND ALSO VIOLATING APPELLANT’S 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.64 Special Agent Muelenberg also said that he did not look at any other suspects even though Gloria Ehlers, a boy names James Angle and Gloria’s mother, Donna Kerr were accused of witnessing this alleged sexual assault by the alleged victim and her mother.65 Q. Would you agree that a completed investigation by the time it gets to you is an investigation where, let’s say, all the witnesses—all possible witnesses are interviewed? A. All significant witnesses should have been interviewed, that’s correct. Q. And by significant witnesses, would you agree that all significant witnesses are witnesses who may have been at the scene of the alleged incident? A. Yes Q. Were you aware that in a report its alleged that a young boy names James Angle who lived in the neighborhood was seen actually grabbing HS’s crotch? A. I don’t—at this moment in time I do not remember reading that in the report. Q. Do you know if he was ever questioned? A. That boy you are referring to?
64 65

Record at 283-286 Record at 290-293
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Q. yes. A. No I do not. Q. Were you aware that HS in an interview said that James was present during the alleged incident? A. I’m not aware of that. Q. Were you aware that also during that interview, which was in the report, that Gloria is said to have walked in on this incident—these alleged incident? A. No. Q. Do you know if Gloria was ever questioned about that? A. I would imagine so, but I do not remember. Q. Did you ever question Gloria yourself? A. No, not me personally. Q. Donna Kurr, did you ever question Donna Kurr? A. Nobody except Sergeant Ehlers 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.66 We have discovered evidence of false reports by prosecution witnesses67, evidence contradicting a prosecution witnesses’ statements or reports68, evidence undermining a prosecution witness’ expertise (e.g. inaccurate statements)69 and evidence that a witness has a reputation for untruthfulness70, all of which seriously undermine the interest of justice and calls to question the motive of the prosecution and its witnesses. We have shown the courts more than a “colorable showing of possible prejudice”71 and because the credibility of the government witnesses, implicated the

66

See Patterson v. New York, 432 U.S. 197, 202, 97 S. Ct. 2319, 2322, 53 L.Ed.2d 281 67 People v. Hayes, 3Cal. App. 4th 1238, 1244 (1992) 68 People v. Boyd, 222 Call. App. 3d 541, 568-569 (1990) 69 People v. Garcia 17 Cal.App. 4th 1169, 1179 (1993) 70 3 Witkin Cal. Evid., 4th Ed., § 288-290 71 Strickland v. Washington, 466 U.S. 668 (1984)
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“integrity of...criminal conviction cannot stand.72

trial

in

the

federal

court,”

the

CONCLUSION It is plainly obvious that Appellant was denied a fair trial because of the above-mentioned facts. 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 to counsel. Special Agent Eric Muelenberg refused to comply with this request made by Appellant on May 25, 2005 and the military judge acknowledged the statement at the end of trial. An explanation of Appellant’ rights are of no value if the agent then fails to honor those rights. The practice of ignoring policies and procedures continued throughout the rest of the investigation, trial and beyond. 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; the government pursued its case in the apparent hope that the defense would not find it after the trial on merits. The prosecution in this case repeatedly failed its affirmative duty to provide the defense with the exculpatory evidence in its possession. 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. 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, 200772

Mesarosh v. United States, 352 U.S. at 3, 9 (1956)
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three years after the first report to NCIS in June 2004, and Appellant was still convicted. 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 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.

___________________________________ Pvt Edwin Ehlers 85909 1300 N Warehouse Rd Ft. Leavenworth, KS 66027

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