Air Force Court of Criminal Appeals Overturns Rape Conviction & 20 Year Prison Sentence for Lackland Basic Military Training Instructor MSgt Michael Silva (2017)

MSgt Michael Silva, USAF

In the 2011/2012 timeframe, the Lackland Air Force Base Sex Scandal coverage began to gain serious momentum in the media. As a result, military leadership set up a hotline number for former recruits to report claims of sexual abuse while attending basic training. After a base wide investigation, 35 basic military training instructors were court-martialed for allegedly abusing trainees or sex related offenses. MSgt Michael Silva was one of two basic military training instructors at Lackland AFB found guilty and sentenced by the military courts to 20 years for rape. SSgt Luis Walker was the other instructor and committed suicide shortly after learning his appeal was denied. At an Article 32 evidentiary hearing convened in Silva’s case, he was facing charges of raping a basic trainee from 1995 and two ex-wives (one in the 1992-1993 time frame and another in 2007). In January 2015, Silva was convicted of raping two of the alleged victims, the basic trainee in 1995 and one of the ex-wives. MSgt Silva wrote a clemency letter to the convening authority in the courts-martial at Joint Base San-Antonio claiming that he was falsely accused and wanted to retire with the rank, pay and benefits of an Air Force senior master sergeant, the rank he earned but was never allowed to wear. Silva claims that his accusers (also military members at the time of the alleged incidents) were motivated to accuse him of rape in an effort to collect veteran’s benefits totaling over $3000 a month. The alleged victim’s names in this case have been protected for their own privacy. Both the 2nd AF SJA office and the convening authority taking action on this case were provided over 150 pages of evidence found post trial proving that the alleged victims were either lying or not credible.

On July 20, 2017, Save Our Heroes reported that MSgt Michael Silva’s rape conviction and twenty year prison sentence had been overturned by the Air Force Court of Criminal Appeals. MSgt Silva’s defense presented seven arguments and the Court of Criminal Appeals made their decision after seeing only one of those arguments, although they referenced some of the injustice in the other arguments, they ruled them moot at this point and would not be answered. MSgt Silva’s case was overturned due to an error on the part of Judge (Col) Natalie Richardson provided, inter alia, the following instructions to the court members before counsels’ arguments on findings:

“An accused may be convicted based only on evidence before the court, not on evidence of a general criminal predisposition. Each offense must stand on its own, and you must keep the evidence of each offense separate. Stated differently: if you find or believe that the accused is guilty of one offense, that—you may not use that finding, or that belief as a basis for inferring, assuming, or proving that he committed any other offense. . . . Proof of one offense carries with it no inference that the accused is guilty of any other offense.”

“Evidence that the accused committed one sexual offense alleged in a Specification—so 1, 2, 3, or 4 of the Charge—may have no bearing on your deliberations in relation to any other of those Specifications unless you first determine by preponderance of the evidence, that is more likely than not, that one offense alleged oc- curred. So if you determine by preponderance of the evidence that the offense alleged in the specification of the Charge occurred, even if you are not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then con- sider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the other alleged specifications. You may also consider the evidence of such other sexual offenses for its tendency, if any, to show the accused [sic] propensity or predisposition to engage in sexual offenses. You may not, how- ever, convict the accused solely because you believe he commit- ted this other offense or solely because you believe the accused has a propensity or predisposition to engage in sexual offenses. In other words you cannot use this evidence to overcome a fail- ure of proof in the government’s case if you perceive any to exist. The accused may be convicted of an alleged offense only if the prosecution has proven each element beyond a reasonable doubt. Each offense must stand on its own, and the proof of one offense carries no inference that the accused is guilty of any other of- fense. In other words, proof of one sexual offense creates no in- ference that the accused is guilty of any other sexual offense. However, it may demonstrate that the accused has a propensity to commit that type of offense. The prosecution’s burden of proof to establish the accused [sic] guilt beyond a reasonable doubt re- mains as to each and every element of each offense charged. Proof of one, proof of one charged offense carries with it no infer-ence that the accused is guilty of any other charged offense.”

“…There were weaknesses in the Government’s case. The alleged crimes occurred far in the past. There were no eyewitnesses other than the victims themselves. The only one of the charged or uncharged victims to report the alleged crimes to law enforcement prior to 2012 was JB, and she recanted her initial allegation. The Prosecution presented no physical, scientific, or photographic evidence of any of the offenses. The Government offered no confessions or admissions to any of the offenses by Appellant, who did not testify.” –United States Air Force Court of Criminal Appeals

MSgt Silva was merely a scapegoat in the Lackland sex scandal. His wife Lisa made the following statement: “They finally did the right thing by admitting that my husband wasn’t afforded a fair trial. They simply used him as a scape goat because of all the political pressure and attention on the alleged Lackland Sex Scandal. By convicting Mike they were sending a message to all the MTI’s both past and present demonstrating that they would go after them no matter what. I don’t know who would want want to even be a MTI knowing that a potential false allegation could be hanging over their head for 20 years and potentially ruin your life. Mike was an amazing mentor to so many over his 24 year career and all they did was destroy him. He was defeated by the very institution he served to protect and defend.”

The political witch hunts produced convictions of military training instructors to appease congressional leaders, and it resulted in one sided investigations. In MSgt Silva’s case, they didn’t even verify statements made by the accusers. In other words, there was no evidence to charge MSgt Silva to begin with because this was indeed a purely ‘he said, she said’ case. And the Air Force Office of Special Investigations (AFOSI) went on a fishing expedition when they sought out MSgt Silva’s ex-wives, who technically may not have the necessary credibility if they were at all resentful or angry that the marriage ended. It appears the AFOSI attempted to connect three accusers in an effort to prove MSgt Silva was a serial rapist with a propensity to commit crimes in the future. As part of a response to the high profile Lackland sex scandal, the Air Education and Training Command (AETC) set up a temporary hot line. One accuser used the specially created hotline to report an alleged rape in 1995 and the other two accusers were ex-wives sought out by AFOSI to bolster their case (one recanted her allegation). Instead, they gave the Air Force Court of Criminal Appeals grounds to throw the conviction out because the alleged criminal modus operandi was not similar in pattern whatsoever and MSgt Silva was never charged or convicted of any crimes prior to his court-martial. Let’s hope the United States Air Force does the right thing in this case and demonstrates to Congress and the civilian organizations that they are serious about fighting crime only when there is evidence to support it.

“The court authorized a rehearing where the government could, in theory, bring new evidence justifying a new trial. This is highly unlikely, given that a new trial would only deepen the embarrassment.” –John Q. Public

A widening sex scandal has rocked Lackland Air Force Base in Texas. Four male instructors are charged with having sex with trainees and in one case raping female trainees. -AP

MILITARY JUSTICE FOR ALL

No affiliation with the Department of Defense or any of the Armed Forces.

Air Force Court of Criminal Appeals Overturns Rape Conviction & 20 Year Prison Sentence for Lackland Basic Military Training Instructor MSgt Michael Silva (2017)

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