David R. Henley Captain U.S. Air Force Convicted Sex Offender Indecent Acts Upon A Child

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Name: David R. Henley

Case: United States v. Henley No. 99-0094

Date Of Appeal: October 20, 1999

Plea: Guilty

Charges: Indecent Acts Upon A Child

Military Branch: U.S. Air Force

Listed In National Sex Offenders Registry? NO

Appellant was tried by a general court-martial comprised of officer members on April 24-26, June 17-21, and June 24, 1996. He was convicted, contrary to his pleas, of violating Articles 125, oral sodomy (1 specification); 133, conduct unbecoming an officer (1 specification); and 134, indecent acts (2 specifications), Uniform Code of Military Justice, 10 USC §§ 925, 933, and 934, respectively.

Appellant was sentenced to be confined for 6 years and dismissed from the Air Force. The convening authority approved the sentence, and the Court of Criminal Appeals affirmed, granting partial relief in accordance with United States v. Gorski, 47 MJ 370 (1997). See 48 MJ 864 (1998).

All of the offenses for which appellant stands convicted arose out of appellant’s sexual abuse of his natural children –- one son and one daughter -- which started when the his son was approximately 4 or 5 years old and his daughter was 11 or 12 years old. The abuse continued until each was about 16 or 17 years of age.

During the course of the trial, there was questioning about prior, uncharged sexual abuse offenses that occurred outside of the statute of limitations. The testimony was offered under more than one theory. The Government originally sought to offer it as either evidence of similar sexual offenses under Fed.R.Evid. 413 or as evidence of child molestation under Fed.R.Evid. 414.* The military judge ruled that this evidence

was admissible under Rule 414, as well as under Mil.R.Evid. 404(b), Manual for Courts-Martial, United States (1995 ed.).

The sexually explicit material introduced against appellant was seized as a result of a search warrant issued by a Texas magistrate. Following the seizure, appellant made some admissions (the confession), which were used against him at trial. He now contends that the magistrate’s warrant must fail because it was not based upon probable cause. He further contends that his confession must also be suppressed as it resulted from the illegal search warrant.

At trial and on appeal, the defense has consistently attacked the warrant on the basis that the information provided to the magistrate was stale and incomplete. The information relied upon by the magistrate was expert testimony and affidavits from appellant’s son and daughter that, over the course of several years, appellant had shown them pornographic materials in the form of videotapes and magazines in order to arouse them. Moreover, both children alleged that they had seen the materials since the time they had been used to facilitate the abuse.