United States v. Ahern
2017 CAAF LEXIS 292
C.A.A.F.2017Background
- Lt. Col. Sean M. Ahern was convicted at a general court-martial of multiple sexual offenses against his stepdaughter and sentenced to dismissal and 17.5 years confinement.
- Investigators and the victim’s mother (SA) used pretextual texts and phone calls to elicit responses from Ahern; Ahern did not directly deny the accusations in those communications.
- The defense affirmatively told the military judge at an Article 39(a) session and at trial that it had no objection to the government’s motions to admit the pretextual calls and text into evidence.
- Trial counsel argued during closing that Ahern’s failure to deny accusations in the calls and texts was evidence of guilt; the defense lodged no contemporaneous objection to that argument.
- The Army Court of Criminal Appeals (ACCA) affirmed on plain-error review and held M.R.E. 304(a)(2) (silence when under investigation cannot be used as admission) applies only when the accused is actually aware of an investigation.
- The Court of Appeals for the Armed Forces (CAAF) affirmed the ACCA’s judgment but on the distinct ground that Ahern waived his M.R.E. 304(a)(2) claim by affirmatively declining to object to admission/use of the pretext communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether M.R.E. 304(a)(2) precludes using an accused’s silence in pretext calls/texts as an admission when an investigation exists | Gov’t: The admitted calls/texts were properly used as evidence; silence can be probative absent rule-based exclusion | Ahern: M.R.E. 304(a)(2) bars treating silence as admission when the accused was under investigation at the time of the silence | Court did not decide substantive trigger question; found Ahern waived the M.R.E. 304(a)(2) claim by failing to object to admission/use of the communications |
| Whether failure to object forfeits or waives M.R.E. 304(a)(2) claims | Gov’t: Failure to object pretrial/process removes later challenge | Ahern: Even without an objection to admission, he preserved the right to challenge later argument that silence showed guilt | Held: M.R.E. 304(f)(1) and defendant’s affirmative “no objection” statements effected waiver (not mere forfeiture); no appellate relief available |
Key Cases Cited
- United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (distinguishes waiver from forfeiture and discusses waiver principles)
- United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (forfeiture/plain-error review articulated)
- Olano v. United States, 507 U.S. 725 (1993) (defining waiver versus forfeiture standards)
- United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009) (defendant’s affirmative “no objection” can constitute waiver)
- United States v. Cook, 48 M.J. 236 (C.A.A.F. 1998) (purpose of M.R.E. 304 predecessor: silence while under investigation should not support inference of guilt)