U.S. v. Haney

An essential element of the offense of carnal knowledge is that the person with whom the accused committed an act of sexual intercourse was not his or her spouse. Article 120(b)(1), UCMJ. The prosecutor in United States v. Haney, NMCCA 200600631 (N.M.C.C.A. Aug. 7, 2007), should be embarrassed that s/he never presented direct evidence of this fact. Lucky for him or her that the NMCCA was able to find substantial circumstantial evidence to overcome the prosecutor’s deficiency—the young lady was 15; lived at home with her mother who had never met the accused; Appellant referred to her as his girlfriend in his statement to investigators; and in his sworn statement said the acts of intercourse occurred while he was dating her.

The appellant also claimed the military judge should not have allowed the trial counsel to cross-examine defense witnesses about their association with the appellant. As the appellant failed to object at trial, the NMCCA correctly determined that plain error analysis is appropriate. It then declared that if the court finds plain error, the burden shifts to the Government to show that the error was harmless beyond a reasonable doubt. Citing United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). But Carter was a case in which the trial counsel in sentencing argument commented on the failure of the accused to present evidence. That is a 5th amendment constitutional issue. The trial counsel’s questions in this case are not a constitutional issue, merely an evidentiary issue. Thus, the test the NMCCA should have used was whether the plain error was harmless, not harmless beyond a reasonable doubt.