United States v. Scher
ACM S32329
| A.F.C.C.A. | Nov 3, 2016Background
- Appellant, an Airman First Class stationed at Ramstein AB, pleaded guilty at a special court-martial to three specifications of wrongful drug use (ecstasy and marijuana). Sentence: bad-conduct discharge, 75 days confinement (approved at 45 days per PTA), reduction to E‑1.
- On 27 February 2015 Appellant used ecstasy in his dorm room with other Airmen; a confidential informant recorded other Airmen using ecstasy in that room that night, but the video did not show Appellant.
- Appellant entered a stipulation of fact admitting he witnessed others prepare and snort crushed ecstasy in his dorm room and that he snorted two lines that night; he confirmed the stipulation during providence inquiry.
- During presentencing the government offered the confidential-informant video (Prosecution Ex. 7); defense objected because Appellant was not depicted and questioned R.C.M. 1001(b)(4) admissibility. The military judge admitted the video for aggravation, finding it authenticated and relevant to the circumstances of the offense.
- Appellant also raised on appeal (for the first time) that he suffered unlawful pretrial punishment (denial of leave and performance of cleaning duties after clearance revocation); he had waived motions in his pretrial agreement and had not sought Article 13 relief at trial.
- The Air Force Court of Criminal Appeals affirmed, concluding the video was admissible in mitigation/aggravation context given the stipulation and providence statements, and that Appellant waived or forfeited any Article 13 claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of dorm-room video at presentencing | Video was improper aggravation evidence because it does not depict Appellant or his drug use | Video is relevant to circumstances of offense, authenticated, and complements stipulation/providence inquiry | Admissible; military judge acted within discretion and no prejudice to Appellant |
| Weight of video when Appellant not depicted | Video should carry little or no weight because Appellant is not on camera | Video shows conditions of dorm room and facilitation of drug use, supporting aggravation | Military judge may give it appropriate weight; no indication of improper consideration |
| Consideration of evidence already covered by stipulation | Redundant and cumulative; not needed for sentencing | Supports and more accurately portrays aggravating circumstances already admitted | Admissible as aggravation corroborating stipulation and providence inquiry |
| Claim of unlawful pretrial punishment (Article 13) | Appellant asserts denial of leave and performance of cleaning duties constituted improper pretrial punishment | Appellant knowingly waived motions (including Article 13 relief) in pretrial agreement and did not request relief at trial | Waived/forfeited; appellant specifically denied pretrial punishment at trial; no relief granted |
Key Cases Cited
- United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (standards for post-trial claims and plea-related issues)
- United States v. Carter, 74 M.J. 204 (C.A.A.F. 2015) (abuse-of-discretion review for sentencing-evidence rulings)
- United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016) (presumption that military judges follow the law)
- United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007) (judges presumed to follow legal standards)
- United States v. Gogas, 55 M.J. 521 (A.F. Ct. Crim. App. 2001) (methods for presenting aggravation evidence)
- United States v. Williams, 68 M.J. 252 (C.A.A.F. 2010) (standard of review for Article 13 entitlement)
- United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003) (forfeiture of Article 13 claims absent plain error)
- United States v. McFadyen, 51 M.J. 289 (C.A.A.F. 1999) (pretrial agreement can waive Article 13 motions)
- United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (distinguishing waiver and forfeiture concepts)