United States v. Ford

STATES, Appellee, UNITED FORD, Specialist,

David R. Army, Appellant.

U.S.

No. 98-0855.

Crim.App. No. 9601467. Appeals

U.S. Court

the Armed Forces.

Argued April 1999. Sept.

Decided 1999.

GIERKE, J., opinion delivered Court, COX, C.J., SULLIVAN, in which and CRAWFORD, EFFRON, JJ., joined. SULLIVAN, J., opinion. concurring filed a Appellant: Captain For Joshua E. Braun II, (argued); Phelps, stein Colonel John T. Odegard, Lieutenant Colonel Adele H. (on Captain CampbelL-Brunson Kirsten V. brief); Captain Levy. Arden B. Appellee: Captain For E. Mary Braisted (argued); Estey Colonel Russell S. Lieu- (on Eugene tenant Colonel R. Milhizer brief).

Judge opinion GIERKE delivered the the Court. military judge

A sitting general as a court- appellant, pursuant martial convicted to his pleas, violating general regulation a lawful by possessing M22 TOW missile sim- ulator, in violation of Article Uniform Justice, Military § Code 10 USC 892. He appellant, contrary also convicted to his pleas, possessing explosive dеvice in general regulation, pos- violation of a lawful firearm, sessing unregistered and unlaw- - expío firearm, sayMP” that bomb overheard “an of Article fully making a violation UCMJ, different § sive had been found 934.1 device Article USC barracks. pro- module of the approved adjudged sentence discharge, confine- for a bad-conduct vides module, to the other SA Conner went forfeitures, days, re- total ment for 120 inspec- he health and welfare where found a grade. enlisted to the lowest duction area In a common progress. tion in Appeals affirmed without of Criminal Court cables, barracks, “some electrical he saw opinion. device, books, improvised explosive sоme following can, granted in bottle con- pyrotechnics This Court review Gatorade they thought was fertilizer.” taining what issues: (CPT) Abbott, company com- Captain mander, that the items be- told SA Conner ap- asked longed appellant. SA Conner WHETHER THE GOVERNMENT him pellant personal data and asked some BY A PREPON- FAILED TO PROVE it, dangerous, “if what is how stuff was THAT DERANCE OF THE EVIDENCE it.” testified that long he had SA Conner (SPC) DID NOT [SPECIALIST FORD] were,” rights appellant “what his asked HIS RIGHT TO COUNSEL INVOKE “that didn’t have to talk appellant he told he AFTER AN ILLEGAL INTERROGA- Conner, According “[w]e to” him. to SA TION, THE AND SUBSE- WHETHER mutually the interview.” SA then ceased QUENT [SPC FORD] STATEMENT “re- appellant did not Conner testified that TAINTED, AND GAVE TO CID WAS lawyer.” quest attorney” or “mention BASED THEREFORE INADMISSIBLE (SSGT) Sergeant Gaddy present was Staff THE THE CIRCUM- ON TOTALITY OF inspection. during health and welfare STANCES, AND WAS PREJUDICIAL questioning appellant. He heard Conner SA FORD], [SPC TO agent stopped questioning When CID minutes,” appellant appellant “for a few II he Gaddy “thought needed asked SSGT he attorney present he answer the should THE WHETHER MILITARY JUDGE questions.” Gaddy appellant that SSGT told ABUSED HIS DISCRETION WHEN him, up “it wasn’t [he] was REQUEST FORD]’S HE DENIED [SPC tell him what to at the time.” testified do EX- A EXPERT ON FOR DEFENSE over”; appellant “went back the CID THE BIAS OF PLOSIVES DESPITE ques- agent couple him a “asked of more EXPERTS, AND THE GOVERNMENT tions,” lawyer to have a appellant ‍​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​​​​‌‌​​​‌‌​‌​‌‌‌‌‌‌‌​‌​‍“asked THAT DENIAL PREJUDICED [SPC lawyer,” and the CID present, or to talk to FORD]. agent questioning. stopped the below, For the reasons set out we affirm. appellant was Abbott testified CPT Right I: to Counsel Issue Invocation barracks, rights in but not advised of his rights. He not inquired he about his Background Factual attorney. appellant asking for an remembеr (SA) 11,1996, Special April Agent Con- On testify concerning Appellant did duty agent for the ner was the on-call local in the bar- with SA Connor conversation Investigation Criminal field office racks. (CID). that a He was notified Command from bar- Appellant transported discharged weapon a bar- soldier had office, placed room, to the CID where was and he to the scene to racks racks went This room was de- investigating, he an interview room. investigate. While he was unregistered which assimi- possessing an fire- lations of clause 3 Article 1. offenses of alleged making capital” were arm and firearm into lates all "crimes offenses 5861(d) § and 26 USC USC violations Article 134. 5861(f), charged respectively, § as vio- being scribed as about 8 feet with period feet There was one we where one-way questioning mirror on one wall. SA Sinclair ceased [sic] the interview. questioned that he appellant testified to ob- Q. Why was that? tain identifying essential data. SA Sinclair A. After agent the other came back from appellant rights did not warn of his at that room, searching [appellant’s] he had found point time. At some Sinclair learned that receipts some from Radio Shack Hines- Texas, from and used the fact ville, and receipts appeared on the that he was also from Texas to establish purchased items were in March of this rapport appellant. some After SA Sin- year. So, about, questioned [appellant] clair obtained identifying some information you know, “I thought you’d been honest appellant, they conversed about Texas far,” with me here so and he said “Yeah.” appellant’s plans Also, and for the future. said, I “You’ve had this stuff here for a conversation, during that SA Sinclair asked time,” long you “Here, know. we find appellant about the Free Men and ap- what receipts you out shopping there pellant Alcohol, thought about the Bureau of month,” you last know. “What’s the deal?” Tobacco, and Firearms. Sinclair SA estimat- So, questioned we that. It was later deter- ed that process took about 15-20 min- that, upon viewing mined original the re- Appellant utes. testified that he believed ceipt, receipt the was dated not 1996. this interview lasted about one hour. photocopy appear had made the “5” be a “6.” SA Conner then entered the room and So, Q. you thought you? lying he was appellant rights. advised of his SA Conner Yes, A. during sir. itAnd was the course testified this second ap- interview with of that pertaining conversation to the re- pellant was about 45 minutes after the con- ceipts Specialist Ford had said some- versation at company the barracks. There is like, thing “I you don’t want to talk to no evidence that SA Conner appel- advised anymore. Maybe lawyer” I get should lant provided information he had something. stopped asking ISo him, eаrlier against could be used and incriminating questions and then I looked trial counsel conceded that no such “cleans- him, him, said, I and after looked at I ing statement” Appellant was made. waived “Well, going what are we to do? Are we rights his inculpatory and made an state- going to you continue the or do interview Appellant ment. told SA Conner how he said, get want stop lawyer?” and He devices, learned to make the how he ordered “Well, you going are accusing to continue parts, when he question, made the item in said, ‘Well, lying?”, you’re me of I if length and the of time the item inwas talking about receipts, we have clari- locker. issue, fied this that it was 1995 and not During interrogation, appellant sаid originally “No, I thought,” as I that he had kept the items his locker for a you’re do not still think lying about that agent considerable time. Another had found then, receipt.” said, He I guess Well I’ll receipts several room and SA go speak you ahead and continue to they Connor appel- believed that showed that about this.” purchased lant had several of the items with- Q. And did he so? do preceding in the month or so. SA Conner Yes, sir, A. he did. appellant accused lying about the date of Appellant’s portion recollection of that purchase. This led to mention an the interview was somewhat different: attorney. SA Conner testified as follows: Q. Agent asking [DC] When Conner was Q. any during ques- At [TC]: time you questions, you questiоns he did ask tioning, you stop questioning? asking you up the same nature that he was A. respect, In [SA Conner]: what sir? in the barracks? Q. you stop questioning any Did him [Appellant] A. I believe so. Some during questioning? reason exactly I them were. don’t remember how lawyer?” I said, you “Do still want a it, a lot of things on but all went ‘Well, me a said, you’re call throughout. questions were same more, know, you and do what liar questions Q. And then switched your doing, I answer you’ve been then will you where the Radio about Shack ...” questions, but bought wires? Yes, lawyer, yes. Q. you asked for a A. first So you opportunity to call give he didn’t beforehand, in Q. Had he asked one? the barracks? I really remember

A. I don’t remember. Exactly. asking about where came him me cross-examination, trial counsel asked On really those and ... don’t remember “willing go appellant if was ahead and questions being asked. questions” after the issue about answer Q. asking about he started When receipts Appellant date was resolved. stuff, happened? Radio Shack what responded: accusing me A. He came and started correct, there was That’s because he said agent had CID lying, after the other out problems more going to be no receipts brought to him. started earlier, okay. I Like I told him that said just I lying, I that had saying that was lied being that didn’t like to I—he said he stuff, know, you and so I was bought being I called a and I said that didn’t like like, “Okay, your playing I’m tired of liar, questions I his because had answered games. lawyer.” I I’m I said want a sure said, honestly. you going “Are to I be times, you kept, he several because anymore me that calling a liar on stuff said, ‘Well, know, stuff, saying and I I said, “No,” talking and he I’m about here?” lawyer.” he —I want a And then don’t said, ‘Well, guess I don’t need and I I a said, know, something on I went “Let lawyer then.” receipts,” me see the and that’s when he said, copies receipts. me I showed “So, asked, you willing Trial counsel originals,” “I to and that’s want see just keep answering ques- point at that originals pulled he out tions, right?” Appellant responded, “Yes.” originals showed me the that the actu- trial, suppress At the defense moved you al dates it that could read. made in the bar- oral statements Q. they say? What did statement executed at racks and the written They A. of ’95 said March instead military judge sup- office. The CID say trying March of He was ’96. pressed made in the oral statement bar- bought I’d the stuff in March of— racks, sup- motion to but denied the defense Q. you you re- And then after —when press the written statement. you you quested lawyer, say maybe did military judge suppressed the bar- you you should or did tell him that defi- by virtue its unwarned racks statement nitely one? wanted character, he but determined re- said, No, lawyer,” I “I and I want a in the bar- quest for counsel was made said, playing games. “I’m I want tired rather, asked, racks, appellant only but lawyer.” my rights?” military judge “What are Q. And then looked at the Radio not invoke his also found that did proved you right. receipt Shack office, but instead to counsel the CID step? Who made the next ambiguous counsel. he made an reference to lawyer, A. He me if I still wanted a asked ruled that the first inadmissible also said, and that’s when I uh —and he said did not taint made the barracks statement something being like about he didn’t lied given the CID. statement second to, said, “Well, being I I like don’t military judge support ruling, trying I’ve answer To called a liar. been honestly following findings: I your questions as as can.” He made the If, case, objects I find that the accused make an as the defense unequivocal request attorney. for an admissibility confession, Sec- prosecution of a “the ond, admissibility.” reopen dialogue the accused did establishing has the burden ... agents. willing- express with the He did 304(e), .R.Evid. Manual for Courts- Mil and a ness desire further discussion (1995 edition).2 Martial, United States Be subject interrogation. about may admitted, fore a confession “[t]he Specifically, I find that the accused made a military judge by must find a preponderance effect, you’re going statement to the “If voluntary. of the evidence” that the confession was play games, attorney” I want an or “If 304(e)(1). R.Evid. A confession Mil. liar, attorney,” call I me want an or challenged “that is ... as derivative evidence effect; those, my words to that both of may military judge be admitted ... if the view, unequivocal, they are not because are by preponderance finds of the evidence proceeded by that conditional “if.” [derivative was made confession] find, further, I that the accused reinitiat- voluntarily, that the was not ob [confession] ed conversation with the Criminal Investi- evidence,] tained use of the [inadmissible [sic], gation stating something Division or that the confession would have been ob testimony I effect —and reviewed the tained even the [inadmissible statement] Special Agent Spe- Michael Connor and 304(e)(3); had not been made.” Mil.R.Evid. that, long cialist “As as are not Ford — see v. Murphy, United States calling anymore, me a liar then don’t (CMA) (“crucial ... issue is not whether the attorney,” something need to the consent was a fruit of the inadmissible state effect, you going calling “Are to be me a rather, ment but ... whether the ‘later con “No,” anymore?” Response, liar voluntary”), denied, fession’ was cert. guess “Then I lawyer.” don’t need 1019, 582, U.S. 115 S.Ct. 130 L.Ed.2d 497 Also, effect, a statement to the “Are (1994). going of lying anymore?”; to accuse me response, “No,” and “Then I a don’t need Phillips, In United States v. 32 76MJ lawyer,” or “If are not call me (1991), Steward, and United States v. 31 MJ liar, ‍​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​​​​‌‌​​​‌‌​‌​‌‌‌‌‌‌‌​‌​‍your a then I questions.” will answer (1990), applied 259 Supreme this Court view, my responses In those characterize Elstad, analysis Oregon Court’s v. 470 U.S. place and, thereby, what took the accused 298, 1285, (1985), 105 S.Ct. 84 L.Ed.2d 222 did reinitiate conversation. subsequent if determine a confession was I find that willing the accused was by previous tainted a unwarned confession. did desire further discussion about In Phillips, explained: this Court subject, voluntarily proceed and he did aWhere confession is obtained at a lawful attorney. without an interrogation that comes after an earlier interrogation in which a confession was

Discussion coercion, duress, obtained due to actual or inducement, subsequent confession is Appellant asserts that the Government presumptively product tainted as a of the prove by preponderance failed to a of the hand, earlier one. On the other where the evidence that his written confession was vol- “involuntary” only earlier confession was untary. argues military judge’s that the suspect properly because the been not findings that he did not invoke his rights of panoply warned of to silence counsel the barracks and later at the CID counsel, and to the voluntariness of the clearly office were erroneous. The Govern- by second confession is determined ment asserts that not make an earlier, totality unequivocal request attorney an at of the circumstances. The for time. unwarned statement is a factor in this total provisions changed, 2. All Manual are cited the version unless otherwise indicated. applicable at trial. The 1998 version is un-

451 requi meet attorney of an “fails to presumptively taint tion picture, but it does not clarity,” questioning may contin site level of subsequent confession. suspect’s “If statement ue. MJ 79. 32 at unambiguous unequivocal request or for totality An “the of all assessment of counsel, obligation no the officers have surrounding circumstances” includes questioning him.” Davis v. United stop characteristics of the accused and “both the States, 459, 461-62, 452, 114 S.Ct. 512 U.S. interrogation.” of Schneck the details (1994). 2350, 129L.Ed.2d 362 Bustamonte, 218, 226, 93 v. 412 U.S. loth recognized that Supreme The Court has “it (1973). 2041, 36 L.Ed.2d 854 Su S.Ct. good police practice for the will often be preme the test for actual Court has described clarify or interviewing officers whether as follows: coercion attorney.” suspect] actually wants [a product Is of essen- the confession Davis, 461, 114 supra at 2350. “There S.Ct. by its tially free and unconstrаined choice prohibition against comment no blanket confess, is, If maker? he has willed police officer after an statement not, if may against him. If it is be used rights.” 49 at Young, MJ 267. invocation capaci- has and his his will been overborne critically ‍​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​​​​‌‌​​​‌‌​‌​‌‌‌‌‌‌‌​‌​‍ty im- for self-determination military judge’s determination paired, the use of his confession offends voluntary question is a that a confession is process. due novo, law, ie., de requiring independent, re 568, Connecticut, 602, 81 v. 367 U.S. Culombe Fulminante, 279, 499 Arizona v. U.S. view. (1961) 1860, (opinion 6 S.Ct. L.Ed.2d 1037 287, 1246, 1252, S.Ct. L.Ed.2d 302 J.). Elstad, Frankfurter, Supreme In Bubonics, (1991); supra at 94. When mili subsequent “A Court stated: administration fact, findings tary judge special makes 444, 436, [384 of Miranda U.S. 86 S.Ct. 1602 they are the basis our review (1966) suspect has warnings given who ] voluntariness, clearly question unless erro voluntary but unwarned statement ordi Cottrill, neous. States United narily should suffice to remove the conditions (1997). precluded admission earlier state ment.” 470 U.S. 105 S.Ct. Applying foregoing principles, we hold quoted Murphy, in 39 at and United MJ appellant’s written confession was volun- (1998). Young, 49 States v. MJ tary appellant and admissible. Because did Thus, necessary inquiry the “[t]he is whether interview, testify about the barracks the not product essentially is of confession military only testimony judge had by free and unconstrained choice its maker.” Gaddy, SSgt appellant who testified that Bubonics, 93, 95 United States v. 45 MJ Conner, lawyer; for asked a SA who testified (1996). If has an earlier un there been lawyer”; appellant not “mention a did statement, a warned “the absence of ‘cleans Abbott, that he did and CPT who testified ing’ warning subsequent before the state lawyer. asking for appellant not remember a ment” one to be “circumstances military appellant did judge found that determining in voluntariness.” considered lawyer during ask a the barracks not for Lichtenhan, United States testimony of SA Conner and interview. (CMA 1994). was to meet the re- CPT Abbott sufficient proof by quirement preponderance for custody suspect of a in Interrogation judge’s military the evidence. Because the requests if suspect must counsel. cease erroneous, clearly 305(f)(2). finding not was ambiguous An com Mil.R.Evid. for of voluntariness. however, factual basis our review request, require ment not does military judge’s finding that Based on the interrogation for request cease. A coun during request lawyer not “sufficiently appellant did clearly sel must be articulated interview, we not need address police officer in the circum barracks that a reasonable improperly question whether SA Connor would understand the statement to stances attorney.” interrogation at the office request If men- reinitiated CID for appellant right minutes, asked, after invoked his to counsel in going “Are contin- we barracks. stop ue the interview or do want to get lawyer?” (1) appellant’s Two issues remain: was voluntary confession at the CID office in hand, appellant the other On testified he spite questioning unwarned in the said, lawyer.” admitted, “I Appellant want (2) barracks; appellant invoke his however, that when Connor examined SA to counsel at CID We office? receipt -and admitted he had been mis- question answer the first the affirmative taken, appellant him told that he would con- negative. and the second in the answering questions lawyer tinue without a if stop calling SA Conner would him a liar. totality Based on the of the circum Appellant responded testified that he to SA stances, appellant’s we hold that written question, Conner’s “Do still want law- voluntary. confession was The barracks in “Well, yer?” by stating, you’re terview, unwarned, although was not anymore call me a liar ... then will answer product of coercion. It was conducted in an your questions.” The context the conver- barracks, open area of the with other unit sation, by understood both SA Conner and personnel moving ques around. SA Conner appellant, appellant was that would not talk appellant tioned in a casual environment persisted Conner if calling SA him a talking others, while including CPT Ab liar, appellant but willing was talk if bott, appellant at the Although same time. acknowledged SA Conner that he had been area, was not free to leave the he was free mistaken receipt about the date on the others, move around and talk to as evi calling stopped him a liar. Under the cir- SSgt denced his conversation with Gad cumstances, appellant’s we hold that invoca- dy. SA Conner terminated the conversation ambiguous, tion was being conditioned on not appellant rights. asked about his called a liar. It was not articulated “suffi- ciently clearly police that a reasonable officer Appellant at conceded trial that he in the circumstances understand the properly rights warned of his at the CID request be a an attorney.” statement being interrogated office. While in the “sta Accordingly, we hold that Connor SA was not itself, tion house” is somewhat coercive required to terminate the interview and thus there is no evidence that was de the written confеssion was admissible. food, water, prived personal or other com Expert Issue II: questioned Assistance forts. He was great length physically. to wear him down While no Background, Factual “cleansing warning” given, appellant ap peared rights freely understand his theory The defense was that the device waived them. When he became irritated at seized locker was not a Connor, SA he threatened invoke them. “firearm,” 5845(a)(8) § as defined 26 USC Finally, there was no reference to the earlier (f). statutory and definition of “firearm” Thus, unwarned statements at the barracks. includes “destructive device.” The de- totality examining after the of the circum argued fense that the device was a “de- stаnces, we hold that the written confession merely a structive device” but firecracker voluntary. was designed for entertainment. On other the hand, prosecution theory the was that only regarding contested issue device was a “bomb.” appellant’s written confession was whether During Manual, he invoked his to counsel. SA Connor a session under RCM supra, military testified that after he accused defense informed counsel lying purchased judge May, about the date on which he Anthony he had interviewed locker, appellant government explosives expert employed by materials found his a said, lawyer,” Alcohol, Tobacco, “Maybe get a should the Bureau of Fire- and (ATF). something similar. SA Conner testified that arms Defense counsel was not satis- stopped interrogation, May he a waited few fied at that time that Mr. could answer pow- grams if the testified that 18.7 appeared Flohr questions. When all his ignited, he from device pertained more der questions defense counsel’s very flash.” If it expect brilliant a chemistry explosives, the Govern- “would than tube, produce a ignited in the “it would military judge that it were ment informed chemist, disks and the report then throw the David loud and to make its forensic intended eject Conceding those.” Flohr, glue, and it would to the defense. hot available to answer his might Flohr be able that Mr. began working May that he testified Mr. permis- questions, counsel received defense upon his September on for ATF military judge to reserve from the sion he Army, where served from retirement completed its until the Government request disposal technician explosive ordnance as an case-in-chief. cross-examining Mr. years. After for 15 case-in-ehief, Mr. During the Government’s training expe- extensively May about his bottle, appel- from seized Flohr identified rience, accepted him as an defense counsel (Prosecution 7), Exhibit tes- locker lant’s expert witness. Pyrodex that it contained mixture tified May that if the device seized Mr. testified “first fire” mixture from gunpowder, the ignited, ex- appellant were it “would from illuminator, ball, and “flattened dou- M127A1 violently plode causing the container [gunjpowder,” based smokeless consistent ble burst, tes- projecting fragments.” metal He powder cartridges. rifle from M-16 that, like a “although this device is not tified cross-examination, Flohr Mr. testified On grenade, have the similar effects would Pyrodex “safe to send that the mixture was grenade pro- It would that a have. through mail.” basically anti-per- fragments that are duce Flohr seized Mr. also identified device that the de- nature.” testified sonnel (Prosecution Exhibit appellant’s locker from applications” “no or industrial vice has social 5) laboratory. was in the which disassembled it, constructed, could be used as and that “as included a flashbulb with the The device opinion fact weapоn.” He based his removed, wires, glass red and black that the tube contained “a metal sleeve” appeared paper to be a card- tube that toilet why produce fragmentation.” Asked “would wrapped multiple layers tube board device, placed Mr. in a fertilizer would tape, duct with a metal liner made silver “an May ammonium nitrate is testified that can. Flohr from an iced tea Mr. testified sulfate, mixture,” explosive but ammonium a condom filled with that the tube contained appellant, from is not the substance seized containing urea and ammonium a substance explosive “an mixture.” sulfate, Py- approximately grams 18.7 classify May asked if would Mr. was gunpowder. The also contаined a rodex tube “just big He re- device as firecracker.” “Play-Doh,” made plug at one end from not, sponded that he would because glue. plugs made snuff cans and hot sleeve. metal cross-examination, Flohr Mr. testified On cross-examination, May Mr. stated On tungsten flashlight bulb’s filament made sleeve that the device it was metal missing it. and he was unable find illegal device” instead of an a “destructive that ammonium sulfate will He testified agreed that metal explosive device. He but will not “sustain combustion.” smoke can, only one- from the iced tea which military judge, the Mr. On examination thick, “light shrap- of a millimeter tenth experi- Flohr testified that conducted nel.” quantity Pyrodex the with a ment small device, an extensive igniting it Defense counsel followed with gunpowder taken from the question, based on the by removing glass flashlight bulb cross-examination the locker, you metal containing have worked with appellant’s to found in “what similar the one explosive and ignite less of an illuminating the filament to the that would have here,” thing experiment, powder ig- In effect that this powder. the destructive Eventually, referring to bright appellant’s flash. Mr. device. produced nited May Mr. shrapnel you’ve testified that device will got effects because thin, explosive somewhere in the middle metal going snuff can that’s to power, pipe destructive flying between going bomb come out. You’re to have qualified an M-80 Well, sir, firecrаcker. He an- shrapnel. actually, you’re going swer, saying, truly say “I can frag. I have not to shrapnel have The definition is with something worked a device that was made of a frag- out a metal container will —as powder soda can with taped it.” ment. But I take BBs nails or this, adding shrapnel. the outside of I’m explore Defense counsel continued Q. So, you the fragments would question power appel- of the destructive have, scenario, being under ‍​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​​​​‌‌​​​‌‌​‌​‌‌‌‌‌‌‌​‌​‍the case best following lant’s device in the cross-examina- damaging, frags, the least which would tion: ends, consist of the metal disks on the one So, Q. everything you else that worked both, or flying off with other no effect? with, metal, with you say would thick- A. I say would not best I case scenario. er metal or more metal? say probable, possible, would it is thinking A. Pm trying give ... I’m functioning, yes, device it could blow you a truthful answer here. ofMost out, yes, fly. a metal disk will It’s also devices look that I at have thicker metal. probable, probable, more contain- Yes. er, itself, rup- the whole container would Q. And you do most of the devices look at ture. powder they have more contain met- Q. Why is that? al? glue A. The hot will cause a seal and once Well, you’re A. trying compare impro- powder gonna burning go starts it’s explosive again vised devices. But there’s an explosion going and that container specs mil no It’s up them. left to the apart. come The whоle container itself is imagination builder. Have I worked fly, creating fragmentation ef- powder? with with devices more Yes. fect in itself. pow- Have worked devices with less Q. taped up der? Yes. But fact that it’s on the prevent sides help shrapnel? wouldn’t Honor, DC. Your way is there other question? Oh, no, I could ask the A. sir. question.

MJ. think he’s answered the Okay. DC. I think we’re there. sjc ^ ^{[*] [*]}

Jfs have Q. Would a anything type to with do of seal on the device that, how well was sealed? Q. by saying that, you’re And saying the distinguishes what,

metal can having from mere fire- A. For to do with sir? cracker status? Q. explosion? Would that affect the Well, quantity powder A. distin- seal, you A. If had —the better the guishes legal [it] from firecracker to an greater pressure incrеase; greater container, illegal device. The the metal increase, pressure explo- the better the container, distinguishes illegal it from an sion. device, device, anti-per- destructive So, Q. mishandled, if it were old or it’s weapon. sonnel possible that we would have a lesser seal Now, Q. possible is it that if this device and, therefore, explosion? a lesser detonated, or both one of the lids seal, you’ve got your If a leak in pop off? explo- could still would have an have — shrapnel? A. With no So, said, you sion. as I powder can take Q. shrapnel With no effect. pile Pyrodex up and I can on that I’ll question sepa- typewriter A. any have to answer that tablе without other confine- Yes, ‍​‌‌​‌​​​‌‌‌​​​​​​​​​​‌​​​​​​‌‌​​​‌‌​‌​‌‌‌‌‌‌‌​‌​‍But, rately. possible. yes, pile it’s there ment other than the and I itself can

455 May Mr. you. That is what what have explode. You’re still get that you’ve I made testified to. don’t believe explosion. an have any adequate showing that consultation exactly you really -can’t how Q. But tell expert be beneficial with another would explosion— much of an it. you offered you points on the for which no, Oh, A. sir— request is Your denied. got—we Q. upon —based what No, you probable sir. I can tell Discussion But my experience. I on effects based 703(d) employ authorizes RCM No, an exact sir. can’t tell as science. at the defense experts ment of assist At the conclusion the Govеrnment’s testimony expense their government case, request defense counsel renewed necessary,” if the would be “relevant and counsel as- expert for assistance. Defense “provide an cannot or will not Government May to ade- that Mr. was unable serted adequate ob This Court has substitute.” quately the defense because he assist showing “upon proper of neces served that ATF, ATF for for works for worked sity, expert an accused is entitled to” assis time, only probationary is still a short Burnette, 473, 29 tance. States v. MJ United uncooperative on employee, and was cross- 70, 475, denied, 821, 111 cert. 498 S.Ct. U.S. examination, i.e., just grasp “he wouldn’t (1990). 112 This Court has L.Ed.2d 43 questions] and last series of acknоwl- [the determining adopted three-pronged for test that edge issues” defense counsel expert necessary: assistance is whether dialogue following wanted raise. First, why expert is needed. assistance then ensued: Second, expert would what assistance requests ... DC: the defense What Third, why accomplish for the accused. who work the defense witness would gather the defense counsel unable any help us whether or not ex- decide expert present the evidence that assis- tell, upon pert could based the set of facts develop. tant able would be exemplified by Prosecution Exhibit as 5 Gonzalez, 461, 459, MJ United States v. 39 seized from lock- [the materials denied, 965, 429, U.S. 115 S.Ct. 130 cert. 513 еr], any expert whether or not could make (1994). L.Ed.2d 342 opinion volatility of the device. as to military judge’s review deci We Volatility being MJ: what? request expert on assistance for sion happen exploded. if it DC: What would v. abuse of discretion. United States See definitely it would He first said throw 477, (1997), Washington, citing 46 MJ 480 shrapnel “frags” and then he called them Garries, 288, United States possible it might and then said it’s that (CMA), denied, 985, 107 cert. 479 U.S. S.Ct. frags. throw to do is What want find (1986), cert. denied L.Ed.2d expert talk to who a defense Washington, 522 U.S. 118 S.Ct. say, Exhibit 5 upon based Prosecution as (1998). 139 L.Ed.2d 642 here, ATF, particu- member of the sits no larly post-blast analyst, can look test, Applying above Gonzalez what it have done if it device tell could military judge hold did not abuse we thаt properly depending on were assembled — made a fo his discretion. Government handled, thing, age how it’s been expert an explosives rensic avail chemist volatility, leaking, things like that. able, that and the record reflects both were you’ve made the defense before the Gov MJ: don’t think an interviewed expert. merits. adequate showing presented need an ernment its case dispute Although complained that Mr. to be real the defense There doesn’t seem employee May probationary of ATF included in was a materials were and, year’s experience, Mr. ig- than one explosive materials with less there years experience nited, May had 15 as they propel could whatever ma- also technician, there, Army disposal ordnance explosive materials or terials were metal 456

and defense prong. counsel conceded trial he Gonzalez record not does show expert. anwas any part on the efforts the defense to if an expert determine existed who could complaint Defense counsel’s Mr. about May. nothing contradict Mr. There is May’s answers cross-examination arose indicating record whether defense counsel May’s Mr. unwillingness agree any had “just independent done research or question big the device in was fire- May that, adamantly specific questioning cracker.” Mr. insisted basis for the re- if еven liner rupture, sponses metal did not given by government expert. produce caps frag- metal end would Short, still generally See United States v. mentation effect. Defense counsel (defense asked for (1999) expected 373 counsel expert “help us decide whether or not “homework”). do any expert” express opinion could con- Decision trary May’s. to Mr. Army decision of the United States Appellant’s request satisfies the first Gon- Court Appeals of Criminal is affirmed. prong. zalez expert testify He needed an “just big device was firecracker” and not a specifi- “destructive device.” More SULLIVAN, Judge (concurring): cally, the expert defense wanted con- only say write I still believe May’s testimony tradict Mr. that the device Short, (1999), produce 50 fragmentation United States MJ 370 effect deto- There, wrongly nated. decided. the Government at expert trial conceded that an necessary appellant’s request Whether satisfies the proffered a “conflicted” one. Id. at 378- prong second Gonzalez question. closer (Effron Sullivan, JJ., dissenting). 79 No expert help He wanted an him find an case, such concession exists and I essence, expert. In asking he was the Gov- agree majority with the ernment to him an expert find who could tell prong necessity establish the third him whether the Government’s expert could Gonzalez, decide, under United 39 be contradicted. We States v. MJ need howev- er,' (CMA), denied, satisfied, prong whether the second cert. 513 U.S. 429, 130 (1994). request because fails the third S.Ct. L.Ed.2d

Case Details

Case Name: United States v. Ford

Court Name: Court of Appeals for the Armed Forces

Date Published: Sep 23, 1999

Citation: 1999 CAAF LEXIS 1249

Docket Number: 98-0855/AR

Court Abbreviation: C.A.A.F.