*1 STATES, Appellee, UNITED AUGSPURGER, Basic,
Wayne G. Airman Force, Appellant.
U.S.
No. 04-0563.
Crim.App. No. S30222. Appeals for Court of
U.S.
the Armed Forces.
Argued Feb. 2005..
Decided June
ERDMANN, J., opinion delivered the GIERKE, Court, C.J., and EF- in which BAKER, JJ., joined. CRAW- FRON J., FORD, separate opinion, dissenting filed part concurring in the result. Major Andrew S. Appellant: For (argued); Lieutenant Colonel Car- Williams Major Terry McElyea L. los L. McDade (on brief). M. Appellee: Major Michelle Lindo
For Coacher, (argued); LeEllen Lieuten- Colonel Combs, Lieutenant ant Colonel Robert V Spencer, K. Gary Major F. James Colonel (on Major Floyd, and M. Leeann Summer brief). opinion
Judge ERDMANN delivered the of the court. (AB) Wayne Augspurger
Airman Basic G. wrongfully using occasions,” wrongfully distributing “on divers disorderly marijuana, being drunk *2 190
wrongfully communicating allegedly a threat viola- Augspurger occasions tion of 112a Articles and 134 of the Uniform marijuana. allegation used one occa- The of (UCMJ), of Code Justice U.S.C. positive urinalysis sion of on a use 912a, (2000), §§ plead- respectively. He result Augspurger’s after urine was tested guilty specifi- disorderly ed to the drunk and marijuana sample when he submitted guilty specifi- remaining cation and not Following positive for a medical test. guilty cations. him The members found not Augspurger test investigator admitted to an wrongfully distributing marijuana of and marijuana that he smoked off-base wrongfully communicating threat. He was apartment 1, with some friends on December guilty wrongfully marijuana, found using of Allegations of additional uses of except for the words “on divers occasions.” marijuana presented were through testi- Augspurger was sentenced to confinement mony previous- of AB Todd A. Coleman who for three months and a bad-conduct dis- ly drug had been of convicted use and who charge. convening authority approved testified that he Augspurger had seen smoke the sentence and the Air Force Court of separate on two occasions Janu- Appeals findings Criminal affirmed ary February 18, by unpublished May sentence order on Augspurger, 2004. United States v. No. specification alleged Aug- The “use” S30222, 128, ACM 2004 CCA LEXIS 2004 spurger had used “on occa- (A.F.Ct.Crim.App. May WL 1238970 sions” between October 2001 and Febru- 2004). ary hearing 2002. After of evidence alleged three occasions use described charged When servicemember above, him guilty the members found of the illegal conduct “on divers occasions” and specification except words “on divers oc- the members find guilty the accused casions,” guilty and found him not but out conduct strike the “on divers excepted words. The members did not indi- language, occasions” findings the effect of the cate which the three uses formed is that the accused has guilty been found single misconduct on a the basis of occasion and not guilty remaining occasions. Where over Augspur- Confusion which occurrence findings not do disclose the occa ger had been convicted was follow- evident based, sion which the conviction is ing the announcement of the verdict. Criminal cannot conduct a 39(a), UCMJ, pursuant session to Article sufficiency factual review affirm the find 839(a) (2000), § U.S.C. defense counsel ings cannot because it determine which occa military judge asked the to have the mem- sion servicemember was convicted clarify judge bers which occasion the servicemember was ac so her declined do but did discuss concern quitted granted of. We case to review this over how she should instruct the members whether the Force court erred nonjudicial regarding Augspurger’s prior reviewing for factual sufficien punishment under Article cy independently determining which act (2000), U.S.C. use de- Augspurger was convicted in his scribed confession. She noted that “at We of. hold that the Air Force Court point, don’t know we even if that’s one of erred. That court could specifications.” military judge not conduct factual ulti- review of Augspurger’s military mately conditionally conviction because the decided to instruct judge upon failed to the factual bases members that could consider Article which the mitigation as evidence based. were had convicted him the same objected
use. The trial
to that in-
counsel
BACKGROUND
“[tjhere
noting
way
struction
is no
actually
knowing what the
convict-
Augspurger’s
At
court-martial the Govern-
separate
him
particular
three
ed
on or which
use.”
Aug-
of the conviction.”
Augspurger
formed
knowing which use
Without
*l-*2,
128, at
of,
parties
spurger,
nor
2004 CCA LEXIS
neither the
had been convicted
1238970, *1.
That
conclud-
the Article
2004 WL
judge knew whether
not re-
that the
erred
as mat-
ed
be admitted
punishment should
specify
which of
quiring the members
aggravation.
mitigation or a
matter
*3
presented
the Govern-
three instances
If
same
Augspurger was convicted
the
finding;
how-
formed the basis
ment
he received the Article
“use”
which
was
to “determine
it found that it
able
ever
punishment,
in-
the members needed
alleged
the
uses
in this ease which of
three
as mat-
into consideration
a
structed
take
of, and thus we
appellant was convicted
the
mitigation
already
that he
had
been
beyond
was
a
the error
harmless
conclude
punished for
other
that offense. On the
Augspurger, 2004 CCA
reasonable doubt.”
hand, if
of use on
Augspurger
convicted
*4,
*2.
at
LEXIS
WL
occasions, the
of the other two
Govern-
one
reviewing the evidence the court satis-
After
could
the Article 15
ment
introduce
beyond
doubt that the
itself
a reasonable
fied
aggravation
sepa-
in
as
ment
a
De-
Augspurger
convicted
members
use.
rate
modified
cember
sentencing
trial
arguments
In the
ambiguity.
Id.
in an effort to resolve the
punishment
counsel referred
Article
court,
argues that
Augspurger
Before this
aggravation, taking
posi-
as a matter in
she
judge erred because
did
acquitted of
Augspurger
tion that
had been
clarify
their verdict be
ask the members
marijuana use that was referenced in his
argues that the
fore it was announced. He
that was the basis for the
confession and
erred
Court of Criminal
also
punishment.
defense counsel
it
Augspurger’s
affirmed
convic
nonetheless
mitigation,
to it as a matter in
tak-
referred
tion and stated that it could determine which
Augspurger
that
been
instance of
the members relied on
use that was ref-
convicted
exercising
fact-finding
its
Arti
powers under
in
erenced
his confession. The
(2000).
66, UCMJ,
He
cle
10 U.S.C.
judge instructed the
as follows:
opinions in
contends that our
United States
regard
Specification
Charge,
In
2 of the
Walters,
(C.A.A.F.2003),
M.J. 391
a
the court found
accused
(C.A.A.F.
United States v.
60 M.J.
marijuana.
single use of
If the basis for
2004), necessitate reversal of his conviction
finding
that
was the incident described
based on these errors.
confession,
the accused’s
Prosecution Ex-
argues
there
suffi-
The Government
that
is
3, then the court
hibit
is advised that when
to ascertain
cient evidence
record
case,
you
upon
decide
a sentence
use of
formed the basis
which
you
punishment
must consider that
has
conviction,
that
lower
Augspurger’s
already
imposed
upon
been
accused
fact-finding au-
properly
court
asserted its
under Article
offense.
reaching
its
con-
thority
conclusion.
It
His
Specifically, he was reduced
rank.
separate inquiry
it
a
tends that
is
mitigation
is a
matter
beyond
a reasonable
court
only
you
Again, this
which
must consider.
the fact-finder used as
doubt
incident
if,
applies
finding
court’s
basis to convict the accused.
Govern-
upon
guilt was
the incident con-
argues
long
so
as a
lower
tained
Prosecution Exhibit
reasonably
fact-
could have determined the
giving
instruction the
beyond
finder’s intent
the record
that she did not know which
demonstrated
doubt,
then that court could
reasonable
Augspurger guilty
found
of.
use the members
sufficiency
re-
thereafter conduct
factual
urges
Augspurger
of that
The Government
Air Force court
view
Before the
finding
uphold
this court to
those determinations
argued “that the
to use
application lower court’s Arti-
ambiguous
proper
in that it failed to
fact-finding power. The Government
alleged
uses
cle 66
specify which of the three
divers
argues that
acquitted,
also
even
the lower court did which
we cannot affirm
Seider
power
finding.”
not have the
to review these
60 M.J. at We noted
that:
power
post-trial
this court has the
to order a
only
that this
fact
ease involved
proceeding
in revision to
incidents while Walters involved six inci-
outright
do so in
should
lieu of
dismissal.
impact upon
inability
dents does not
of Criminal
conduct
sufficiency
factual
review the conviction.
DISCUSSION
question
The defect
neither a
defendant was
legal
or factual
of the evidence
use “on
occasions”
other,
one
use versus
nor is
the Government
evidence of a
question
it
weighing
to be resolved
number of instances of
use. 58 M.J.
*4
concluding
and
evidence of
392-93. The
the
members found
defendant
is
or
quantitatively
qualitatively
one use
guilty
only
guilty
inferior.
use “on divers
Id. at
This
occasions.”
Id. at
n. *.
military
court held that it was
for
error
the
is not distinguishable
This ease
from the
judge to fail to obtain clarification of the
rationale of Walters and Seider. As
those
findings prior
members’
to announcement
eases,
simply
is
there
no indication
the
findings.
those
Id. at 396-97. We also
members as to the factual basis for their
ambiguity
findings pre
found that the
findings
guilty
guilty.
and not
the
Ap
cluded
the
review
Court
Criminal
inability
determine
for
to
the basis
the find-
peals
Criminal
“[a] Court of
ings
is reflected
After the
record.
any allegation
as fact
in specifi
cannot find
announced,
findings
party
were
each
held a
cation for which the fact-finder below has
findings.
different
for the
view the basis
395,
guilty.”
found the accused not
Id. at
military judge
The
uncertain
was also
as
reflected
her
instruction
conditional
on
Seider,
Subsequently, we decided
which how the members were to consider the Arti-
only
differed from Walters in that there were
Accordingly,
punishment.
cle 15
we hold
alleged by
two instances of
use
the
the Court
Criminal
did not
Again
excepted
Government.
authority
have
to
and affirm Aug-
review
on
the words
divers occasions and found the
spurger’s
by selecting
conviction
the occasion
guilty
only
defendant
one
use
occasion.
that formed
basis for the conviction and
Ap-
In evidence of administra- Government credible nonjudicial may many tive action be taken as six use. The instances single against a violation of found Walters of one servicemember for words, ecstasy by “on excepting Code Justice use of Uniform to, case, occasions,” (UCMJ), specify but not regard such as in this did with wrongful use of a substance. which of the six instances formed controlled Id. In punishment may imposed for their at 392-94. contrast Administrative here, Appellant using with provisions under of Article while (2000). occasions, case, Appellant marijuana In on divers the evidence U.S.C. trial, given by 15 for the Government at under Article introduced positive urinalysis Appellant’s wrongful use of a included a controlled substance December, held that December 2001. While we have confession clearly judicial See, estoppel. formed the basis for the members’ e.g., United States finding. Although two Kattar, (1st witnesses testified as 130-31 Cir. uses, factually to other this case is 1988); Johnson, see also United States v. distinguishable Appellant from Walters. (8th Cir.1994) F.3d (stating that and, confessed trial while counsel moved to original particulars Government’s bill of suppress Appellant’s confession once it was would have been admissible if inconsistent admitted, the confession discredited. court). charge with the later before the opening both defense counsel’s statement 801(d)(2) M.R.E. is the same as its coun closing argument on the he terpart in the Federal Rules of Evidence practically invited Ap- the members to find admissions, regard party including pellant guilty of the instance reflected statements, adopted by statements author statement, opening confession. In his he agents, ized by principals. and those made “[Tjhere’s said: evidence of one 801(d)(2) provides M.R.E. that certain state but there’s not evidence of divers uses on hearsay. ments are not Those statements different occasions.” In argu- his “(C) by person include a statement author ment, he told the members that party ized to make a statement con wrongfully “admits that he used (D) cerning subject, his December or a statement statement. That’s not in dispute. party’s agent his concerning statement is corroborat- ... a matter n withinthe ed the fact that his screen came scope agency employ positive marijuana back when he checked ment agent ... made the exis hospital.” try into the The defense did not tence relationship.” M.R.E. to cross-examine Government witnesses as to (D). 801(d)(2)(C), The courts are divided on Appellant’s evidence or contradict con- prosecutors’ treatment statements. fession. principle Some follow the common law “no individual should be able to bind the prosecutor, zeal, in misguided his tried See, sovereign.” Zizzo, e.g., prevent panel United States v. giving Appellant *6 (7th Cir.1997). 1338, 1351 any credit for the F.3d n. Bak shinian, contrast, relating prosecutors the same use that defense held opening counsel mentioned in his closing can sovereign. F.Supp.2d bind the prosecutor statements. The wanted the Ar- necessary 1106. It among is not to decide ticle 15 to be considered a mat- because, divergent these views in aggravation that would not serve to stance, least, argument the trial counsel’s instance, reduce the sentence. In this I possibilities underscores the different con apply logic would Rule of cerning (M.R.E.) (D) 801(d)(2)(C), Evidence to re- majority imposes unnecessary per question solve the prosecu- whether the se rule on cases in which “divers occasions” tor’s statement at trial as to his beliefs is alleged, examining rather than the indi- binding least, on the Government. At “identify segregate vidual facts to those argument to the shows there instances of use of which may is more than one incident that have been (citation acquitted,” atM.J. omit- subject punishment, to the Article 15 thus ted), when the facts of record make raising the issue of whether the Court of process crystal They apply clear. fail to could affirm the conviction judicial estoppel divergent positions for one of the several incidents set forth Government, distinguish fail to the Government’s case. United States factually this case But for the Walters. (2d Salerno, Cir.1991); 811-12 prosecutor’s argument, this ease would be Bakshinian, see also States v. United factually distinguishable (C.D.Cal.1999) from both Walters F.Supp.2d (requir- prosecutor’s but because the ar- by promises the state to abide made Government, prosecutors). guments prose- bind the I concur statements Government, cutor bind the or at least result the result.