United States v. Dowd
ACM 39073
| A.F.C.C.A. | Nov 29, 2017Background
- Appellant (22) responded to a Craigslist "Casual Encounters" ad and corresponded with an online persona "Tina," who identified herself as 14; the persona was an AFOSI undercover created by SA TK.
- Appellant exchanged sexually explicit messages, sent two photos of his exposed penis and a video of himself masturbating, arranged to meet "Tina" on base, and was arrested at the meeting.
- Charged at a general court-martial with attempted sexual assault/abuse-related offenses; acquitted of one attempted sexual assault specification but convicted of two specifications of attempted sexual abuse of a child; sentenced to a dishonorable discharge, 20 months confinement, reduction to E‑1, forfeitures, and reprimand.
- Defense moved to dismiss for entrapment (both due‑process/outcome-based "objective" test and subjective predisposition test); military judge denied dismissal but instructed the members on entrapment; members convicted on two specs.
- Post-trial issues raised on appeal: (1) entrapment, (2) nondisclosure (training slides and whether the operation was "unauthorized"), (3) exclusion/limitation of defense expert testimony, and (4) sentence appropriateness. Court affirmed findings and sentence.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Entrapment (due process/objective) | SA TK’s undercover conduct (titillating ads, re‑initiations, calling Appellant "boring") was outrageous and coerced Appellant as a matter of law | Undercover operations and deceptive tactics are permissible; conduct here was not coercive or shocking | Denied — objective standard not met; communications show Appellant’s predisposition and voluntary sexual conduct despite knowing "Tina" was 14 |
| Entrapment (subjective/predisposition) | Government originated the criminal design and Appellant lacked predisposition | Even if Government originated approach, Government proved beyond a reasonable doubt Appellant was predisposed; no extraordinary inducement | Denied — Government proved absence of entrapment beyond a reasonable doubt; opportunity ≠ inducement |
| Discovery (Brady / R.C.M. 701 materials) — training slides & alleged "unauthorized" ops | Failure to disclose SA TK’s entrapment training slides and that the operation was "unauthorized" deprived defense of material/impeachment evidence | No specific discovery request shown; materials either not Brady or not clearly withheld; even if nondisclosed, evidence was harmless beyond a reasonable doubt | Denied — not subject to disclosure here; or, if error, harmless beyond a reasonable doubt given the documentary record of Appellant’s messages |
| Expert testimony (mil. R. Evid. 702 / Houser factors) | Defense expert’s analyses (SCIRS, CBS‑R, LIWC) would show coercion/control supporting entrapment and undermine intent findings | Expert methods were unreliable or inapplicable (surveys of adults, tools not used in forensics), subjective editing of texts, minimal probative value, and risk of confusion/prejudice | Denied in large part — military judge did not abuse discretion excluding the proffered specific analyses; limited general psychological testimony allowed |
Key Cases Cited
- Whittle v. United States, 34 M.J. 206 (C.M.A.) (entrapment burden shifting / predisposition framework)
- Howell v. United States, 36 M.J. 354 (C.M.A.) (definition of "inducement" and limits on entrapment defense)
- Berkhimer v. United States, 72 M.J. 676 (A.F. Ct. Crim. App.) (objective/due process entrapment standard)
- Jacobson v. United States, 503 U.S. 540 (1992) (undercover decoys and permissible stratagems)
- Sorrells v. United States, 287 U.S. 435 (1932) (early endorsement of undercover artifice to catch criminals)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (standards for admissibility of expert scientific testimony)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution duty to disclose materially favorable evidence)