United States v. Vazquez
2013 CAAF LEXIS 220
C.A.A.F.2013Background
- Appellee was convicted by a panel of officer members of one specification of aggravated sexual contact with a child under 12, under the UCMJ, Article 120.
- Sentence included dishonorable discharge, eight years’ confinement, forfeitures, reduction to Airman Basic, and reprimand.
- AFCCA held that R.C.M. 805(d)(1) applied in a way that violated military due process, deeming the error per se prejudicial and reversing.
- AFCCA’s decision rested on replacement panel members hearing live testimony only after five government witnesses had testified and reading that testimony verbatim to new members.
- The Government sought review under Article 67(a)(2), raising questions about replacement-member procedure and waiver/plain-error analysis.
- This Court reversed the AFCCA, holding Article 29(b) and R.C.M. 805(d)(1) constitutional as applied, and returned the record for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality as applied to the case | Vazquez argues Article 29(b) and 805(d)(1) unconstitutional as applied. | Appellee contends the procedures violated due process under Weiss and related cases. | Constitutionality as applied is not shown; procedures were constitutional as applied. |
| Whether failure to object waives review or permits plain error analysis | AFCCA erred by treating failure to object as waiver of due process claim. | Appellee consented to procedure; waiver but, if not, plain error applies. | Waiver of objection analyzed as forfeiture with plain-error review; not structural error. |
| Whether Article 29(b) and 805(d)(1) violate confrontation rights when new members hear prior testimony via verbatim reading | Argues Confrontation Clause and Sixth Amendment concerns with read-aloud testimony. | Transcript-read to new members is admissible under former testimony and meets confrontation safeguards. | Article 29(b) and 805(d)(1) satisfy Confrontation Clause when properly applied. |
| Role of Mistrial and R.C.M. 915 in loss-of-quorum scenarios | Suggests mistrial or recall of witnesses should have been considered under R.C.M. 915. | Judge properly followed Article 29(b) and 805(d)(1); waiver forecloses mistrial claim. | No abuse of discretion in applying 29(b) and 805(d)(1); no mandate for mistrial under these facts. |
| Impact of demeanor evidence and potential prejudice | Presence or absence of demeanor could affect credibility determinations; removal of original panel could prejudice. | Procedures ensured witnesses testified in presence of accused; demeanor assessment preserved to an extent. | Record does not establish material prejudice; procedures did not violate due process. |
Key Cases Cited
- Weiss v. United States, 510 U.S. 163 (1994) (test for constitutionality as applied to military procedure)
- Arizona v. Fulminante, 499 U.S. 279 (1991) (per se prejudice framework for structural errors)
- Neder v. United States, 527 U.S. 1 (1999) (plain-error standard and prejudice assessment)
- Coy v. Iowa, 487 U.S. 1012 (1988) (Confrontation Clause face-to-face requirement and reliability)
- Hubbard, 28 M.J. 27 (C.M.A. 1989) (former testimony and hearsay in military trials)
- Weiss v. United States (Weiss standard) cited again in context, 510 U.S. 163 (1994) (deference to congressional determinations in military procedure)