In U.S. v. Warda, decided last week by the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Tia Johnson, joined by Chief Judge Kevin Ohlson and Judges John Sparks and Liam Hardy, the court reversed defendant’s rape conviction:
Appellant and MB met on Facebook in 2012. After communicating over various platforms for a few years, they met in person for the first time in December 2015, when Appellant and his family traveled to MB’s home in Amman, Jordan, to ask her family for permission to marry MB. They were married in a Sharia Court in Jordan on December 15, 2015. Afterwards, MB remained in Jordan while Appellant returned to the United States.
In the spring of 2017, Appellant and MB argued over the phone and Appellant orally divorced her by talak, the Islamic term for “divorce.” MB testified that after three oral talaks, a divorce is final and cannot be revoked. Appellant’s brother AF elaborated:
The way that you execute that divorce is orally, so you just say, “I renounce you.” It could be over text message, over the phone, it could be in person, and if you do it three times that’s the final divorce. Afterwards, you could [sic] that administrative paperwork, but once you say the word it’s an effective divorce.
Appellant revoked the first talak, and in May 2017, MB went to New York to obtain a Green Card. Later that summer, she moved to New York to live with Appellant.
Over the next couple of months, Appellant announced two more talaks. AF testified that when he spoke to MB after the third and final talak in September 2017, MB told him that she wanted citizenship and the dowry she had been promised. AF testified that when he told her he could not deliver either of those things, she replied, “You will see what I am going to do and you will regret it.”
In October 2017, MB reported to civilian law enforcement that Appellant had forced her to have sex on more than one occasion, including in August 2017, which is the incident at issue in this case. She sought a temporary protective order against him, and in February 2018, she obtained a long-term protective order. Their divorce was finalized in April 2018. MB’s Green Card expired in May 2019, but she remained in the United States. In March 2020, she took a job as an administrative assistant with a nonprofit organization that provides immigration services. By the time she testified in September 2020, she had been living in the United States for three years, where she worked and attended college, and she had made several trips to Jordan to visit her family.
The court concluded that the trial court erred by denying defendant access to MB’s immigration records; the records, the court held, were “essential to a fair trial”:
According to the defense, the requested immigration records could reveal one of two outcomes relevant to this case: either MB continued her resident status by claiming she was battered or she did not. If she claimed abuse, the evidence would support her motive to fabricate because claiming she was a victim of a sexual assault would provide a way to continue her legal residency in the United States without assistance from Appellant after her divorce. If she did not claim abuse, the evidence would undermine the credibility of her sexual assault allegations in this case, and the defense could cross-examine her on the prior inconsistent statement. Furthermore, if she sought resident status on some other ground, the evidence would undermine the credibility of her assertion that the sole reason she immigrated to the United States was to be with her husband, when she was otherwise happy to remain in Jordan. In sum, as the defense argued, “[T]his evidence is of central importance because it is [MB]’s motive to fabricate in this case. Her immigration status is the central [tenet] of the defense theme in this case ….”
To the military judge’s suggestion that that evidence of a battered spouse claim could “cut[ ] both ways,” the defense responded by acknowledging, “[p]otentially,” but contends to this Court “that does not negate the materiality of the evidence.” In other words, the defense theory was that the evidence in question would be exculpatory regardless of what it revealed, even if the evidence could also provide the Government with useful, prior consistent statements. The military judge made no findings of fact and drew no conclusions—beyond the erroneous conclusion that Appellant failed to meet his burden to establish that such records exist—to undermine the defense’s theory that this evidence was exculpatory.
In this case, MB alleged that she was the victim of domestic violence when she was present in the United States on a conditional Green Card. The Government’s case rested almost entirely on her testimony: there were no eyewitnesses, no medical evidence, no law enforcement reports or testimony admitted into evidence, and no forensic evidence. Appellant asserted that she fabricated the allegations in order to be able to remain in the United States after he divorced her. During the court-martial, MB denied knowing that if she claimed spousal abuse she could remain in the United States. When the defense motion to compel failed to produce even an acknowledgment of the existence of her immigration records, Appellant had no reasonable means to verify or refute her testimony.
In cases such as this one, where there is no substantial evidence supporting the complaining witness’s allegation of domestic abuse, the credibility of the complaining witness is of central importance. Thus, the accused in such a case has a vital interest in being able to obtain evidence that could be used to impeach the complaining witness’s testimony at trial, thereby undermining her overall credibility.
We conclude that the defense established that evidence concerning MB’s immigration status was of central importance to her credibility, the central issue in this case. By repeatedly denying knowledge that she could claim spousal abuse and thereby extend her Green Card, MB implicitly denied having done exactly that—while also preventing the defense from obtaining the records, thereby thwarting effective cross-examination as to her motive to fabricate the allegations.
Judge Gregory Maggs dissented, arguing that “the military judge [did not] abuse[] his discretion in concluding that there was an ‘adequate substitute’ for the evidence that the immigration records might have contained”; see pp. 26-34 for that dissent, and pp. 20-21 for the majority’s response.
William E. Cassara and Captain Tumentugs D. Armstrong represent defendant.
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