United States v. Bench

• Decision Date: 08 August 2022
• Docket Number: 21-0341,Crim. App. 39797
• Parties: UNITED STATES Appellee v. Daniel A. BENCH, Master Sergeant United States Air Force, Appellant
• Court: United States Court of Appeals, Armed Forces Court of Appeals

UNITED STATES Appellee
v.
Daniel A. BENCH, Master Sergeant United States Air Force, Appellant

No. 21-0341

Crim. App. No. 39797

United States Court of Appeals, Armed Forces

August 8, 2022

Argued March 1, 2021

Military Judge: Charles G. Warren

For Appellant: Captain Alexandra K. Fleszar (argued); Mark C. Bruegger, Esq. (on brief).

For Appellee: Major John P. Patera (argued); Colonel Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and Mary Ellen Payne, Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in which Chief Judge OHLSON, Judge SPARKS, Judge MAGGS, and Senior Judge STUCKY joined.

OPINION

HARDY JUDGE.

The Confrontation Clause of the Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses against him." U.S. Const. amend. VI. This case presents the question whether Appellant's right to be confronted by a complaining witness was violated when trial counsel misled Appellant's son by telling him that Appellant was not watching his son's remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not.

The confrontation right is a procedural guarantee that ensures that any testimony presented to a jury be tested through "the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61 (2004). The essential elements of the confrontation right require that the accused have an opportunity to cross-examine the witness, that the witness take an oath to tell the truth, and that the jury be able to observe

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the witness's demeanor. Maryland v. Craig, 497 U.S. 836, 851 (1990). Each of these elements was present when Appellant's son testified remotely during the court-martial. Although the Court recognizes that trial counsel's misleading statements might have lessened the pressure Appellant's son felt to tell the truth, the essential elements of Appellant's confrontation right were still vindicated. Accordingly, we cannot say that it should have been clear or obvious to the military judge that the admission of EC's testimony would materially prejudice Appellant's Sixth Amendment rights. The decision of the United States Air Force Court of Criminal Appeals (AFCCA) is affirmed.

I. Background

Based on his children's allegations, including those of his nine-year-old autistic son (EC), the Government charged Appellant with four offenses committed either against or in the presence of his children. The charges included three specifications of lewd acts with children in violation of Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b (Supp. IV 2013-2017), and one specification of indecent conduct in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012 & Supp. IV 2013-2017).

Prior to Appellant's court-martial, the Government requested that EC be permitted to testify remotely by video teleconference from an area outside Appellant's presence. The Government argued that remote testimony was necessary "to protect [EC's] welfare because testimony in a courtroom setting, in light of him being autistic, will be particularly distressing, confusing and potentially embarrassing." Government Motion for Appropriate Relief: Remote Testimony of Child Witnesses E.B. and B.B. at 1, United States v. Bench, No. ACM 39797 (Apr. 2, 2019) (Appellate Exhibit VII).^[1] The Government further asserted that EC would "be traumatized without remote testimony because of the physical and verbal indications of his fear of [Appellant] and that [Appellant] will find out he has told their 'secret.'" Id. After Appellant declined the military judge's invitation to

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object to the Government's request, the military judge permitted EC to testify remotely.

Government trial counsel (TC), defense counsel (DC), and the special victim's counsel (SVC) for EC were present in the remote location during EC's testimony. Appellant remained in the courtroom, along with other counsel, the military judge, the panel, and the court reporter. Although a livestream screen was visible to EC in the remote location, a piece of paper had been placed over half the screen to block EC's view of the courtroom.

During EC's testimony, he repeatedly asked trial counsel questions about the remote testimony procedure, including specific questions about who could hear his testimony. Several of trial counsel's responses, although indisputably intended to ease EC's concerns and facilitate his testimony, were misleading or false. For example, as soon as EC began testifying, he became distracted by the paper on the livestream screen. EC asked why half the screen was covered, and trial counsel answered that it was to "make sure [EC] would be able to answer [the] questions, and not get distracted." Trial counsel and EC then engaged in the following exchange:

[EC:] Are there people in there

[TC:] No, not so many

[EC:] What?

[TC:] Nope, you just have to worry about us right here, okay? So you've got me, and [the SVC], and [the DC]. And so we're just-

[EC:] -But are they going to-but are there going to be people-

[TC:] -No, just the three of us right here, and we're going to ask you some questions, and then you'll be all done and you can go-go back outside, okay?

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