United States v. Swift
2017 CAAF LEXIS 299
C.A.A.F.2017Background
- Appellant Swift was convicted by a general court‑martial of two specifications of indecent acts with a child under Article 134, UCMJ.
- The ACCA dismissed the charged conduct (terminal element issue) without prejudice and the case was retried by a military judge, resulting in two guilty findings and adjudged sentence.
- During trial the government introduced uncharged misconduct under M.R.E. 404(b) and 414, linked to a sworn CID confession describing Hawaii Bedside and Texas Old Flame incidents.
- KS, the complainant, testified to various acts, including several uncharged incidents (Hawaii Van, Texas Pool, Couch Peeing, Texas Bedside) beyond the charged acts.
- The ACCA affirmed based on uncharged misconduct, and this Court granted review to address (I) Article 66(c) sufficiency, (II) admissibility/corroboration of the confession, and (III) sufficiency of the charged acts.
- The Court holds that the ACCA erred by relying on uncharged conduct for guilt, vacates the ACCA decision, and remands for proper factual/legal sufficiency review and handling of 404(b)/414 evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the ACCA’s Article 66(c) review rest on uncharged misconduct? | Swift; 66(c) review cannot affirm on uncharged conduct. | ACCA can evaluate overall record for sufficiency including uncharged acts. | Remand for proper 66(c) review required. |
| Was the pretrial confession properly admitted given lack of corroboration? | Swift waived corroboration challenge by no objection. | Waiver does not foreclose review of corroboration issues. | Waiver governs; remand for independent 66(c) sufficiency analysis. |
| Is the evidence legally/factually sufficient to sustain the charged specifications? | Evidence supports charged conduct; proper review on remand. | Uncharged conduct cannot be the basis for conviction; need separate analysis. | Remand to assess sufficiency with correct legal framework. |
| How should M.R.E. 404(b)/414 evidence be treated on remand? | Unclear admissibility; proper balancing required. | 404(b)/414 analysis should be conducted with deference to trial judge. | ACCA to re‑evaluate 404(b)/414 on remand. |
Key Cases Cited
- United States v. McAllister, 55 M.J. 270 (C.A.A.F. 2001) (remand for proper sufficiency review when 66(c) issues arise)
- United States v. Bennitt, 74 M.J. 125 (C.A.A.F. 2015) (cannot affirm on uncharged conduct; basis for conviction matters)
- United States v. Miller, 62 M.J. 471 (C.A.A.F. 2006) (affirms need for correct factual/legal basis for review)
- United States v. Atchak, 75 M.J. 193 (C.A.A.F. 2016) (broad discretion in 66(c) review; remand permissible)
- Chiarella v. United States, 445 U.S. 222 (1980) (court cannot convict on theory not presented to trier)
- United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004) (importance of 66(c) substantial rights; plenary review)
- United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017) (CCA cannot exceed findings approved by convening authority)
- United States v. Davis, 65 M.J. 766 (A. Ct. Crim. App. 2007) (issues with evidentiary rulings on remand)
- United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005) (discussion of 403/414 evidentiary balancing)
- United States v. Miller, 31 M.J. 247 (C.M.A. 1990) (corroboration standards for confessions)