IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Airman First Class L.R.M.

, USAF, Appellant v. Lieutenant Colonel JOSHUA E. KASTENBERG, USAF Appellee and Airman First Class Nicholas E. Daniels, USAF Real Party In Interest ) ) ) ) ) ) ) ) ) ) ) ) ) ) REAL PARTY IN INTERESTS OPPOSITION TO MOTION OF PROTECT OUR DEFENDERS TO SUPPLEMENT THE RECORD USCA Dkt. No. 13-5006/AF Crim. App. No. 2013-05

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: COMES NOW Real Party in Interest Airman First Class Nicholas E. Daniels, by and through his undersigned counsel, and pursuant to Rule 30(b) of this Honorable Courts Rules of Practice and Procedure opposes Protect Our Defenders motion to supplement the record. Introduction On May 28, 2013, Protect Our Defenders moved for leave to file an amicus brief. The Real Party in Interest opposed that

motion, pointing to factual and legal errors in the amicus brief and asserting this case should not bog down in debates over irrelevant and erroneous factual claims advanced by the amicus. Real Party in Interests Opposition to Motion of Protect Our Defenders for Leave to File an Amicus Curiae Brief [hereinafter Amicus Opposition] at 1-2. Protect Our Defenders has now proved

that point by moving to supplement the record to provide extrinsic materials, some of which contradicts points made by Protect Our Defenders in its amicus brief, while expressly inviting a debate over dubious extra-record survey data. Protect Our Defenders Motion to Supplement the Record (hereinafter Motion to Supplement) at 6. This Courts rules disfavor consideration of facts outside of the record established at the trial and the Court of Criminal Appeals. C.A.A.F. R. 30A(a). Such disfavor is particularly See

appropriate where a non-party seeks to provide extra-record material a mere eight days before oral argument and after briefing by the parties is complete. This Court should deny

both Protect Our Defenders motion to supplement the record and its motion to file its amicus brief, which improperly relies on extra-record material. I. Declarations from counsel discussing facts from other cases that are not reflected by this Courts decisions in those cases are irrelevant to resolution of Appellants due process claim. Protect Our Defenders moves to file a vague declaration by Alexandra M. Kwoka, Esquire, concerning Carlson and Ryan-Jones v. Smith, 43 M.J. 402 (C.A.A.F. 1995). In its discussion of

that declaration, Protect Our Defenders admits that its characterization of Carlson, as well as that of the government,

was erroneous.

Protect Our Defenders Motion at 3 & 3 n.3.

Protect Our Defenders also advances the erroneous argument that the Real Party in Interest erred by asserting that nothing in the Carlson summary disposition opinion indicates that it was the petitioners Military Rule of Evidence 412 rights, privacy interests, or Article 31 rights that were at issue. Protect

Our Defenders fails to realize that the Carlson summary disposition does not indicate whether the petitioners were the complaining witnesses in that case. Commander Carlson and Dr.

Ryan-Jones could just as easily be record holders attempting to avoid producing EEO documents concerning other individuals.1 Kwokas vague declaration does not even resolve that uncertainty, since she does not provide a name for the individual she represented in Carlson. Moreover, the Real Party Ms.

in Interests counsels attempt to contact Ms. Kwoka to inquire further was unsuccessful; counsel was advised that she would not be available to speak before Thursday, June 6. Motion to Attach Declaration of Julie Coleman.
1

See accompanying A non-party

Appellants brief similarly makes an argument unsupported by the Carlson summary disposition by stating that the court noted that the victims will be given an opportunity with the assistance of counsel if they so desire, to present evidence, argument and legal authority to the military judge regarding the propriety and legality of disclosing any of the covered documents. Appellants Brief at 16 (quoting Carlson, 43 M.J. at 402). Carlson provided that opportunity to the petitioners. It is unclear from the Carlson summary disposition whether the petitioners were the alleged victims or were, instead, record holders of documents related to the alleged victims. 3

should not be permitted to file a vague declaration eight days before oral argument when the declarant cannot even be reached by counsel for the parties for three days. Finally, Protect Our Defenders argues that it must be allowed to submit Ms. Kwokas declaration to refute the Real Party in Interests observation that historically, court-martial practice has not included complaining witnesses argument about what evidence is admissible. See Motion to Supplement at 2.

The Real Party in Interest made that point during a discussion of Appellants argument that she has a due process right to have her counsel present legal arguments to the military judge at any Military Rule of Evidence 412 or 513 hearing. Interests Brief at 19. See Real Party in

Even if a complaining witness in a

sexual harassment case had counsel appear on her or his behalf in one court-martial in 1995, that would hardly constitute recognition of a fundamental right that would satisfy the Weiss standard for applying the Due Process Clause to military justice practice. See Weiss v. United States, 510 U.S. 163 (1994).

Thus, no good cause exists to allow a non-party to expand this cases record by introducing Ms. Kwokas declaration. And the

same is true of Ms. Murphys comparatively fulsome declaration discussing facts not included in this Courts opinion in United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006), related to her

representation of a social worker on whom a subpoena had been served. II. Protect Our Defenders erroneously equates unwelcome sexual contact with sexual assault. In opposing Protect Our Defenders motion to file its amicus brief, the Real Party in Interest observed that Protect Our Defenders mischaracterized what the Department of Defense Fiscal Year 2012 Annual Report on Sexual Assault in the Military purported to estimate, which was the number of servicemembers subjected to unwanted sexual contact, not sexual assault. Amicus Opposition, supra, at 7. Protect Our Defenders now seeks

to attach that reports definitions of the terms unwanted sexual contact and sexual assault. 5-6. Motion to Supplement at

But rather than supporting Protect Our Defenders argument

that those phrases are synonymous, those definitions actually confirm that unwanted sexual contact is a broader term than sexual assault. Protect Our Defenders proffered definition of unwanted sexual contact from the 2012 report is intentional sexual contact that was against a persons will or occurred when the person did not or could not consent. See Department of Defense

Fiscal Year 2012 Annual Report on Sexual Assault in the

Military, Volume I, at 12 [hereinafter 2012 DoD Report].2

The

report states that the term describes completed and attempted oral, anal, and vaginal penetration with any body part or object, and the unwanted touching of genitalia and other sexually-related areas of the body. Id. Note that the

definition requires no specific intent beyond intentional sexual contact. A kick to the groin would satisfy the

definition of an intentional unwanted touching of genitalia, as would a variety of other unwanted touchings without any intent related to sexual gratification, or abuse, humiliation, harassment, or degradation. On the other hand, the Department

uses the term sexual assault to refer to a range of crimes, including rape, sexual assault, nonconsensual sodomy, aggravated sexual contact, abusive sexual contact, and attempts to commit these offenses, as defined by the UCMJ. supra, at 52. 2012 DoD Report,

Every one of those offenses, with the exception

of penile penetration of the vulva, anus, or mouth, includes a specific intent element in addition to the requirement for a touching. See Article 120(a), (b), (c), (d), (g)(1) (defining

sexual act to include a specific intent element with the exception of penile penetration of the vulva, anus, or mouth), (g)(2) (A), (B) (defining sexual contact to include a specific

http://www.sapr.mil/media/pdf/reports/FY12_DOD_SAPRO_Annual_Repo rt_on_Sexual_Assault-VOLUME_ONE.pdf. 6

intent element).

Under these definitions, many forms of

unwelcome sexual contact would not constitute a sexual assault. Thus, sexual assaults are a subset of unwelcome sexual contacts. The documents now offered by Protect Our Defenders do nothing more than confirm that its amicus brief incorrectly describes the results of the 2012 survey. III. Protect Our Defenders seeks to attach an erroneous description of the percentage of those servicemembers who report unwanted sexual contact who would do so again. In opposing Protect Our Defenders motion to file an amicus brief, the Real Party in Interest demonstrated that Protect Our Defenders vastly overstated the percentage of servicemembers who reported unwelcome sexual contact and who would do so again. Amicus Opposition, supra, at 8-9. It its motion to supplement

the record, Protect Our Defenders does not argue that its description of the statistic was correct it wasnt but instead argues that the executive summary to the Department of Defenses report offers the same erroneous figure that Protect Our Defenders offered. Motion to Supplement at 6-7. Protect

Our Defenders moves to attach a page from the executive summary offering that incorrect figure. Id. at 7. This Courts

disfavor of expanding the record, see C.A.A.F. R. 30A(a), should

be at its apogee when a non-party moves to attach a clearly erroneous exhibit. As the 2010 Workplace and Gender Relations Study makes clear, the statistic in both Protect Our Defenders amicus brief and the reports own executive summary was calculated using the wrong denominator. And that incorrect denominator results in

the statistics being more than three times smaller than they should be. The correct denominator is the number of those who

responded that they experienced unwanted sexual contact, not the far smaller number of those who experienced unwanted sexual contact and also reported that contact. That point is made

crystal clear in both the text of page 35 of the report and Figure 16, which appears on that same page. 2010 Workplace and Yet

Gender Relations Survey of Active Duty Members at 35.3

Protect Our Defenders would have this Court consider a clearly erroneous account of that statistic from the reports executive summary. Conclusion For the foregoing reasons, this Honorable Court should deny Protect Our Defenders motion to supplement the record.

http://www.sapr.mil/media/pdf/research/DMDC_2010_WGRA_Overview_R eport_of_Sexual_Assault.pdf 8

Respectfully submitted,

Dwight H. Sullivan CAAF Bar No. 26867 Air Force Appellate Defense Division 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 (240)612-4773 dwight.sullivan@pentagon.af.mil

CHRISTOPHER D. JAMES, Capt, USAF CAAF Bar No. 34081 Appellate Defense Counsel Appellate Defense Division 1500 W. Perimeter Road, Suite 1100 Joint Base Andrews NAF, MD 20762 (240) 612-4770 christopher.james@pentagon.af.mil Counsel for Real Party in Interest

CERTIFICATE OF FILING AND SERVICE I certify that copies of the foregoing were sent via email to the Court, Appellants counsel, Judge Kastenberg, Appellees Counsel, the Air Force Government Trial and Appellate Counsel Division, counsel for amicus National Crime Victim Law Institute, counsel for amicus Protect Our Defenders, counsel for amicus Navy-Marine Corps Appellate Defense Division, counsel for amicus Marine Corps Defense Services Organization, and counsel for amicus Air Force Trial Defense Division, and the Army Defense Appellate Division, on June 4, 2013.

Dwight H. Sullivan CAAF Bar No. 26867 Air Force Appellate Defense Division 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 (240)612-4773 dwight.sullivan@pentagon.af.mil

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