United States v. Clark

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Norman L. CLARK Sr., Sergeant
United States Army, Appellant
No. 19-0411
Crim. App. No. 20170023
Argued February 11, 2020—Decided April 22, 2020
Military Judge: Matthew A. Calarco
For Appellant: Lieutenant Colonel Christopher Daniel
Carrier (argued); Lieutenant Colonel Tiffany D. Pond, Major
Angela Swilley, and Captain Steven J. Dray (on brief).
For Appellee: Major Jonathan S. Reiner (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
and Major Hannah E. Kaufman (on brief); Captain
Christopher T. Leighton.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN,
OHLSON, and MAGGS, joined.
_______________

Judge SPARKS delivered the opinion of the Court.
Contrary to his pleas at a general court-martial, Appellant
was convicted by a panel of officer and enlisted members of
false official statement, rape of a child, and sexual abuse of a
child, in violation of Articles 107 and 120b, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 907, 920b (2012).1 The
resulting convictions stem from his commission of lewd acts
upon and the rape of his four-year-old daughter, AC. The
adjudged and approved sentence provided for a reduction to
E-1, twelve years of confinement, forfeiture of all pay and
allowances, and a dishonorable discharge. The United States

1 The United States Army Court of Criminal Appeals
mistakenly stated that Appellant was convicted of sexual assault of
a child instead of sexual abuse of a child.
 United States v. Clark, No. 19-0411/AR
Opinion of the Court

Army Court of Criminal Appeals affirmed the findings and
sentence.
We granted review to determine whether the military
judge abused his discretion in failing to strike the testimony
of two Criminal Investigation Command (CID) Special Agents
(SAs) under Rule for Courts-Martial (R.C.M.) 914, and, if so,
what the correct standard is to assess prejudice, and whether
there was prejudice in this case. We conclude that the
military judge erred when he denied Appellant’s R.C.M. 914
motion, and that assessing for prejudice under the
nonconstitutional error standard is appropriate in this
instance. The error in this case did not have a substantial
influence on the findings.
I.
Background
In its opinion below, the lower court helpfully set out the
relevant facts and procedural background for resolution of the
issues in the case:
This case started when AC complained of vaginal
pain in the form of a rash and a burning sensation
during urination. At a medical appointment to treat
AC’s vaginal pain, a pediatric nurse observed
vesicles (fluid filled blisters) on the inside of AC’s
labia majora. Testing of these vesicles revealed AC
had contracted a form of genital herpes, Herpes
Simplex Virus Type-2 (HSV-2), a viral infection.
HSV-2 genital herpes is contracted when a person’s
genitalia makes direct physical contact with an
infected person’s mouth, genital tract, or anus. AC’s
treating pediatrician testified “a preadolescent
female, not sexually active female, would obtain or
contract genital herpes ... in some non-innocent
sexual way ....”
An investigation commenced to determine the
infected person who sexually engaged with AC,
causing her to contract HSV-2 genital herpes and
manifest vesicles on the inside of her labia majora.
This court-martial commenced after appellant
tested positive for HSV-2 genital herpes and
confessed to CID agents to raping and sexually
assaulting AC. Appellant’s sole assignment of error
involves his confession to CID agents during the
course of two separate interviews conducted on back-
to-back days.

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Opinion of the Court

On the first day, appellant waived his rights,
engaged in a lengthy interview with CID agents, and
made several incriminating admissions. On the
second day, appellant voluntarily returned to the
CID office, again waived his rights, and confessed, in
the beginning of the interview, to penetrating AC
with his penis to the depth of his fingernail.
Appellant stated AC was too tight for him to enter
further so he thrust his penis between her legs until
he ejaculated.
Appellant’s two interviews were video recorded
by CID using a case tracker system. After an
interview, an agent must download a video recording
from the case tracker system onto a digital media
disc to preserve the interview. The first day’s
interview comprised three discs [Discs 1, 2, and 3]
and the second day’s interview comprised two discs
[Discs 4 and 5]. At the time of downloading, the CID
agents believed Disc 4 and Disc 5 contained the
entire interview from day two. Several months after
appellant’s interviews, CID agents discovered the
contents of Disc 4 actually depicted the beginning of
the day one interview, as opposed to the beginning
of the day two interview where appellant confessed
to penetrating AC. The failure to adequately copy
and preserve Disc 4 underlies appellant’s alleged
R.C.M. 914 error.
Upon learning about the problems with Disc 4,
the defense first filed a motion under R.C.M. 703 to
abate the proceedings. A lengthy motion hearing
ensued to determine if such a Disc 4 existed, the
efforts CID agents took to find such a disc, and, in
the absence of any such disc, the actual nature and
contents of the beginning of the day two interview.
The military judge made detailed written findings of
fact and conclusions of law on the R.C.M. 703
motion, which are fully supported by the record,
determining that CID failed to preserve a Disc 4
depicting the beginning of the day two interview. We
now pause to highlight the relevant portions of the
military judge’s ruling.
The military judge found “[d]espite relatively
exhaustive efforts to locate ... [a disc depicting the
beginning of the day two interview], to include
searching every file in the office and examining
other copies that should have been duplicates of the
[disc] ... that [portion of the] interview was never
recovered.” Having determined that portion of the

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Opinion of the Court

interview no longer existed, the military judge next
made findings of fact regarding the nature of the lost
evidence.
Four CID agents and one military special victim
prosecutor, Lieutenant Colonel (LTC) JB, testified
that, at the beginning of the day two interview,
appellant confessed to inserting his penis into AC’s
vagina and ejaculating. The witnesses testified that
appellant stated he was “fishing” between AC’s legs
and buttocks as he tried to insert his penis into what
he called his daughter's “pussy.” The witnesses
confirmed that appellant waived his rights,
voluntarily spoke to the agents, received multiple
breaks and food, and did not receive any threats or
promises from CID. The defense presented no
witnesses during the motion hearing to contradict
the government witnesses’ testimony as to
appellant’s incriminating statements or his
treatment during the interview.
When questioned regarding any possible CID
motivation for losing the disc, LTC JB stated:
[I]f there was a worse DVD for CID to lose, if you
will, this would be it. I mean, there’s absolutely
nothing on this DVD that painted CID in a bad
light, whatsoever. There’s absolutely no reason
for any agent to want to get rid of it or not to
produce it because there was ... nothing
exculpatory on it, it was all inculpatory in
detailing what he had done to his daughter. So
there would absolutely be no reason for an agent
to try to get rid of it, I mean, there had been
multiple attorneys there watching.
The military judge denied the defense motion to
abate the proceedings because of the lost disc. While
this ruling could have been the culmination of any
further litigation regarding the lost disc at the trial
level, the government opened the door to a defense
motion under R.C.M. 914 when two SAs testified as
to comments they made to appellant from the
beginning of the day two interview. The defense
moved to strike their testimony under R.C.M. 914.
[The parties agreed that the military judge could
consider the evidence from the R.C.M. 703 motion in
ruling on the R.C.M. 914 motion. Adopting these
findings of fact,] [t]he military judge denied the
defense R.C.M. 914 motion holding that the
comments of the agents from the beginning of the

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Opinion of the Court

day two interview were not “statements” for
purposes of R.C.M. 914.
United States v. Clark, No. ARMY 20170023, 2019
CCA LEXIS 247, at *2―7, 2019 WL 2455504, at *1―3
(A. Ct. Crim. App. June 10, 2019) (alterations in
original) (footnotes omitted).
II.
R.C.M. 914
A military judge’s decision whether to strike testimony
under R.C.M. 914 is reviewed for an abuse of discretion.
United States v. Muwwakkil, 74 M.J. 187, 191 (C.A.A.F.
2015). An abuse of discretion occurs when a military judge’s
findings of facts are clearly erroneous or his conclusions of law
are incorrect. United States v. Olson, 74 M.J. 132, 134
(C.A.A.F. 2015).
R.C.M. 914(a) states “[a]fter a witness other than the
accused has testified on direct examination, the military
judge” upon motion of the opposing party shall order the
production of “any statement of the witness that relates to the
subject matter concerning which the witness has testified.” A
“statement” is defined, in part, as “[a] substantially verbatim
recital of an oral statement made by the witness that is
recorded contemporaneously with the making of the oral
statement and contained in a[n] ... electrical, or other
recording.” R.C.M. 914(f)(2).
The Jencks Act requires the military judge, upon motion
by the accused, to order the government to disclose prior
“statement[s]” of its witnesses that are “relate[d] to the
subject matter” of their testimony after each witness testifies
on direct examination. 18 U.S.C. § 3500(b). “In 1984, the
President promulgated R.C.M. 914, and this rule ‘tracks the
language of the Jencks Act, but it also includes disclosure of
prior statements by defense witnesses other than the
accused.’ ” Muwwakkil, 74 M.J. at 190 (citation omitted).
“Given the similarities in language and purpose between
R.C.M. 914 and the Jencks Act, we have conclude[ed] that our
Jencks Act case law … should inform[] our analysis of R.C.M.
914 issues.” Id. at 191.
The military judge denied Appellant’s R.C.M. 914 motion,
finding that the agents’ comments were not statements for
R.C.M. 914 purposes because they were made in order to
illicit statements from Appellant. The question before us is

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Opinion of the Court

whether the agents’ comments during Appellant’s
interrogation qualified as “statements” under R.C.M. 914.
The Government argues that “[b]ecause the [agents’]
questions contained on the missing disc were merely
interrogatories designed to get something of evidentiary
value—appellant’s statement in response—they are not
statements for purposes of [R.C.M.] 914.” Brief for the
Government at 18, United States v. Clark, No. 19-0411
(C.A.A.F. Dec. 12, 2019). In United States v. Susskind, 4 F.3d
1400, 1406 (6th Cir. 1993), the United States Court of Appeals
for the Sixth Circuit stated:
There may be rare occasions when a lawyer’s
question to a witness can constitute a “statement,”
but ordinarily a statement ends with a period, not a
question mark. See, for example, Rule 801(a), Fed.
R. Evid., defining a statement as an “assertion.”
Nothing in the transcript of the questions posed by
Mr. Janice suggests to us that there is any reason,
in this case, to give the statutory term a broader
meaning than it would have in ordinary usage. The
questions simply were not “statements” within the
meaning of the [Jencks] Act.”
Although there is no way to determine with certainty as
to what was said on missing Disc 4, we can look to the
remaining discs for guidance. On the remaining discs, the SAs
made a variety of assertions while interrogating Appellant.
The remaining discs establish the improbability that the SAs
simply asked Appellant questions on missing Disc 4.
Accordingly, Susskind is inapplicable to the issue before us.
In United States v. Walbert, 14 C.M.A. 34, 36―37, 33
C.M.R. 246, 248―49 (1963), this Court held that a tape
recording of an interrogation at which the accused signed a
confession was subject to the Jencks Act and should have
been disclosed once the interrogating agent testified to
matters regarding the admissibility of the confession. The
holding in Walbert does not support the military judge’s
conclusion that the agents’ remarks at the interview did not
constitute “statements” because they were statements made
to the accused. Similarly, we have held that written notes by
a government agent are “statements” if the agent testifies at
trial. See United States v. Albo, 22 C.M.A. 30, 34, 46 C.M.R.
30, 34 (1972) (“The notes of a Government agent who testifies
at a court-martial are producible if the notes relate to the
testimony of the agent.”).

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Opinion of the Court

Walbert and Albo reveal that our jurisprudence has
favored an expansive interpretation of the definition of
“statement” with respect to the Jencks Act. Consistent with
that approach, we conclude the agents’ comments on Disc 4
contained “statements” under R.C.M. 914. Our conclusion on
this point is reinforced by the text of R.C.M. 914 which
indicates that a videotaped interrogation constitutes a
“statement” because it meets the R.C.M. 914(f)(2) standard of
being “[a] substantially verbatim recital of an oral statement
... that is recorded contemporaneously with the making of the
oral statement and contained” in a recording. Accordingly, the
military judge erred in concluding that the agents’ comments
during Appellant’s interrogation were not “statements”
pursuant to R.C.M. 914.
The Supreme Court and our Court have indicated that
good faith loss or destruction of Jencks Act material and
R.C.M. 914 material may excuse the government’s failure to
produce “statements.” Muwwakkil, 74 M.J. at 193; United
States v. Augenblick, 393 U.S. 348, 355–56 (1969). A finding
of sufficient negligence may serve as the basis for a military
judge’s conclusion that the good faith loss doctrine does not
apply. Muwwakkil, 74 M.J. at 193.
Because the military judge denied Appellant’s motion by
concluding that the agents’ comments were not statements,
his ruling did not consider whether the good faith doctrine
applied. However, the military judge adopted his finding of
fact from his written ruling on the R.C.M. 703 motion. In that
motion, the military judge found:
no evidence of bad faith on the part of any
government actor either before or after the evidence
was lost. The Court finds the agents of the Ft.
Campbell CID Office took considerable efforts to find
the lost disc, even if there was some room to
reinforce their efforts. To be sure, the Ft. Campbell
CID Office appears to have inadequate procedures to
ensure they know who is conducting the proper
preservation of interviews recorded on Casecracker,
at least in this case….
In this circumstance, it would not be unreasonable for this
Court to conclude that the military judge made a negligence
finding when he found that “the Ft. Campbell CID Office
appears to have inadequate procedures to ensure they know
who is conducting the proper preservation of interviews
recorded on Casecracker, at least in this case.” However, for

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the purposes of this opinion, we may assume without deciding
that the Government was sufficiently negligent and further
assume that the good faith loss doctrine does not apply. As
will be discussed below, we may still affirm the findings if we
are convinced that the R.C.M. 914 error was harmless.
III.
Prejudice
At the trial level, R.C.M. 914(e) provides the military
judge with two remedies for the government’s failure to
deliver a “statement”: (1) “order that the testimony of the
witness be disregarded by the trier of fact” or (2) “declare a
mistrial if required in the interest of justice.” However, when,
as here, the military judge errs in denying a R.C.M. 914
motion, we must determine whether this error prejudiced
Appellant. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2018).
“[W]e test for prejudice based on the nature of the right
violated.” United States v. Tovarchavez, 78 M.J. 458, 465
(C.A.A.F. 2019). The standard of review and allocation of
burdens depends on whether the defect amounts to a
constitutional error or nonconstitutional error. Generally, a
Jencks Act violation will not rise to a constitutional level.
Augenblick, 393 U.S. at 356. This principle is not absolute,
however, as, “[i]t may be that in some situations, denial of
production of a Jencks Act type of a statement might be a
denial of a Sixth Amendment right.” Id. Thus, “the failure to
provide material to which the defendant is entitled under the
Jencks Act may adversely affect a defendant’s ability to cross-
examine government witnesses and thereby infringe upon his
constitutional right of confrontation.” Krilich v. United
States, 502 F.2d 680, 682 (7th Cir. 1974). Here, however,
Appellant was the subject of the interrogation, and therefore
was aware of the tone and general content of the agents’
comments. Furthermore, the agents were subject to cross-
examination. Therefore, we conclude that Appellant was not
denied his right of confrontation. Under the facts of this case,
the R.C.M. 914 error infringed a procedural right rather than
a fundamental constitutional right.2 Therefore, we test this
nonconstitutional error for prejudice under Article 59(a),
UCMJ.

2 We also conclude that the R.C.M. 914 violation in this case
does not violate any other constitutional rights.

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Opinion of the Court

“For [preserved] nonconstitutional evidentiary errors, the
test for prejudice is whether the error had a substantial
influence on the findings.” United States v. Kohlbek, 78 M.J.
326, 333 (C.A.A.F. 2019) (citation omitted) (internal quotation
marks omitted). “In conducting the prejudice analysis, this
Court weighs: (1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” Id. (citations omitted) (internal quotation marks
omitted).
Although our review for prejudice is de novo, we agree
with the lower court’s well-reasoned analysis of the above
factors. The record contains sufficient evidence for us to
conclude, as did the lower court, that despite the erroneous
admission of the agents’ testimony, Appellant was not
prejudiced. Apparently, during oral argument before the
lower court, appellate defense counsel conceded that the
R.C.M. 914 motion was limited to the comments on the lost
Disc 4. Clark, 2019 CCA LEXIS 247, at *14, 2019 WL
2455504, at *5. Admissions Appellant made during other
portions of his interview were damning. He admitted during
portions of the interview contained on Discs 1, 2, 3, and 5 to
committing various sexual acts against AC. Id. at *14, 2019
WL 2455504, at *5. Also, Appellant agreed in his trial
testimony to telling the agents that he had penetrated AC’s
vagina with his penis. Id. at *14, 2019 WL 2455504, at *5.
The record also contains evidence that both Appellant and AC
had HSV-2 genital herpes. Id. at *14, 2019 WL 2455504, at
*5. Finally, the medical expert testified that HSV-2 is
transmitted by “direct contact in the form of mucosa of the
mouth, of the genital tract, of the anus …. [I]t has to be direct
contact either oral-genital, [or] genital-genital….”
Additionally, in Rosenberg v. United States, 360 U.S. 367,
371 (1959), the Supreme Court noted that a failure to produce
may be held harmless if the defense otherwise had access to
the same information:
An appellate court should not confidently guess
what defendant’s attorney might have found useful
for impeachment purposes in withheld documents to
which the defense is entitled. However, when the
very same information was possessed by defendant’s
counsel as would have been available were error not
committed, it would offend common sense and the
fair administration of justice to order a new trial.

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Opinion of the Court

There is such a thing as harmless error and this
clearly was such.
While the defense may not have had the “very same
information” that would have been available if the disc was
not lost, as Appellant could not be expected to remember the
interview verbatim, Appellant’s participation in the
interrogation gave trial defense counsel sufficient
information to cross-examine the agents. Moreover,
Appellant chose to testify and had the opportunity to explain
to the panel the manner in which the agents conducted the
interrogation. Accordingly, the military judge’s error did not
have a substantial influence on the findings.
Judgment
The decision of the United States Army Court of Criminal
Appeals is affirmed.

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