United States v. Eslinger
2011 CAAF LEXIS 582
| C.A.A.F. | 2011Background
- Appellant Eslinger, a Special Forces medic with 18 years in the Army, was convicted of three specifications of possession of child pornography under Article 134, UCMJ, 10 U.S.C. § 934 (2006).
- Images found on Appellant’s laptop totaled over 1,700, including bestial forms; defense claimed some downloads were inadvertent during file sharing while Appellant was training away from the device.
- Masden, Appellant’s girlfriend, discovered the images on March 4–8, 2006, and reported them to law enforcement; fingerprint evidence suggested downloads around February 14, 2006, when Appellant allegedly was in North Carolina.
- At sentencing, defense presented mitigation witnesses who opined Appellant should be retained in the Army; Government rebuttal witnesses urged that he should not remain in the service.
- The military judge allowed rebuttal testimony from several senior command officials; defense objected, and the judge instructed to disregard one witness’s testimony as requested.
- The Army Court of Criminal Appeals affirmed; on appeal, Eslinger challenged the admissibility and foundation of rebuttal evidence, and whether R.C.M. 1001(b)(5) applies to rebuttal under R.C.M. 1001(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C.M. 1001(b)(5) bars rebuttal testimony | Eslinger argues rebuttal opinions violate 1001(b)(5) limitations. | Eslinger contends 1001(b)(5) does not govern rebuttal under 1001(d). | R.C.M. 1001(b)(5) does not govern rebuttal; rebuttal is governed by 1001(d). |
| Foundation for lay opinions in rebuttal | Witnesses lacked personal knowledge to offer rehabilitative opinions. | Witnesses had sufficient basis from their roles and observations in the command. | Some rebuttal foundations (e.g., Col. Tovo, Maj. Peltier) lacked strong personal knowledge; others (MSG Stensgaard) had adequate foundation; overall no plain error found. |
| Unlawful command influence concerns | Presence of senior officers in rebuttal creates risk of influence over sentencing. | Any influence was mitigated by tailored instructions and limited scope of rebuttal. | No plain error found; potential command influence recognized but not shown to prejudice the sentence. |
| Euphemistic rebuttal testimony | Rebuttal witnesses impermissibly urged nonretention through euphemisms that invade sentencing province. | Some rhetoric was permissible as part of rebuttal to defense retention evidence. | Court held such euphemistic rebuttal testimony impermissible; but not dispositive of prejudice in this record. |
| Prejudice of rebuttal evidence | Admitted evidence could have substantially influenced the sentence. | Harmless given mitigating factors and overall sentencing context. | No substantial influence found; the sentence affirmed. |
Key Cases Cited
- United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005) (retention evidence; limits on rebuttal and need for tailored instructions)
- United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (limits on punishment opinions by witnesses; defense and government alike)
- United States v. Saferite, 59 M.J. 270 (C.A.A.F. 2004) (MR.Evidence applicability to sentencing and safeguards)
- United States v. Kirk, 31 M.J. 84 (C.M.A. 1990) (foundation required for rehabilitative opinions; Horner cited)
- United States v. Horner, 22 M.J. 294 (C.M.A. 1986) (rehabilitative potential foundations; personal assessment required)
- United States v. Eslinger, 69 M.J. 522 (A.Ct.Crim.App. 2010) (foundational issues for rebuttal and curative admissibility; follow-on analysis)