*1 STATES, Appellee UNITED KAISER, Sergeant
David J. Army, Appellant.
U.S.
No. 02-0609/AR.
Crim.App. No. ARMY 9900485. Appeals Court
the Armed Forces.
Argued Dec. 2002.
Decided March
ERDMANN, J., opinion delivered the Court, GIERKE, EFFRON, in which BAKER, JJ., CRAWFORD, joined. C.J., separate dissenting opinion. filed a Appellant: For Captain Terri J. Erisman Teetsel, (argued); T. Colonel Robert Lieuten- Chandler, ant Colonel E. Allen Jr. Ma- (on brief); jor Imogene M. Jamison Colonel Odegard. H. Adele Appellee: For Captain Janine P. Felsman (argued); Margaret Lieutenant B. Colonel Baines, Lieutenant Colonel Lauren B. Leek- (on brief); Major er and H. McGee Jennifer Major Cygnarowicz. T. Paul Judge opinion ERDMANN delivered the of the Court. pleas, Appellant
Pursuant to his was con- violating victed of two *2 engaging in sexual activi- loaning money and specifications adul- order and two lawful and ties. tery in violation of Articles 92 Uni- Justice form Code May for al- Appellant was tried in UCMJ], §§ Con- U.S.C. (four specifica- leged violations of: Article trary pleas, general a court-martial to his tions) com- violating the for above-referenced and composed of officer enlisted nonprofessional policy by engaging in mand Appellant specifica- convicted additional (PFC) relationships Private First Class with violating lawful and an addi- tion of a order (PVT) SG, AC, Private MB and Private PFC adultery. The ad- specification tional (PV2) 93, UCMJ, CA; Article 10 U.S.C. E-2 provided for a
judged approved and sentence (2002) (three making specifications) § for forty- discharge, confinement for bad-conduct to PFC AC sexual overtures offensive and (45) days, pay of all and allow- five forfeiture UCMJ, NW; Article and PFC ances, El. and reduction Private With (2002) (two specifications) § for consen- for- exception of certain modifications CA;1 sodomy and Article 134 sual PV2 with Army appeal, feiture not relevant this (four upon specifications) for indecent assault Appeals affirmed the find- Court of Criminal adultery AC, AC and with PFC PVT PFC opinion. in a ings and sentence memorandum Specialist and CB. E-2 CA Appellant’s petition, granted we review On trial, Appel- of his At the commencement following of the issue: respect mixed to the lant entered with charges. pleaded guilty to two of He THE MILITARY WHETHER JUDGE (PFC and specifications Article 92 AC four THE ERRED BY INFORMING PANEL CB) adultery two of the three PFC and THAT APPELLANT HAD MEMBERS (PFC under Article 134 AC specifications PLEADED GUILTY TO SOME OF- CB). to the and PFC He FENSES BUT NOT OTHERS remaining charges below, For the reasons set forth we conclude Following providence inquiry and en- her erred reverse. try guilty findings, military of the following exchange engaged with coun- FACTS sel: twenty-four year-old mar- was and his Please be seated accused [The MJ: sergeant approximately years ried with six Captain Bogie, I counsel directed.] did as and, at all relevant service times called believe that we case, specifications in this at 0915? for assigned Language Defense Institute correct, That Your Honor. TC: Foreign Language Center at the Presidio Monterey, capacity Okay. up California. In his as a take some administra- MJ: Let’s officer, training Do we have noncommissioned tive matters now. establishing copy that we can have training was tasked with sched- extra appellate and has marked as an exhibit ules events students. provided copy of to the defense? that been 1996, the In June of Commander of No, Honor. The defense DC: Your Language policy Institute issued a Defense flyer. copy have a of the doesn’t even students, relationships with memorandum on prohibiting Why just go staff involved in train- ahead and use MJ: don’t we Salerno, copy Captain please forming nonprofes- my or evaluation here. did as relationships Nonpro- approach. defense counsel [The sional students. relationships directed.] Take a to review that. fessional with students were moment to, including, but hands the defense [The defined as limited flyer.] dating, drinking, borrowing copy counsel a gambling, tery), but as “PFC [CA]” [CA]” Private E-2 CAis identified as “PVT E-2 is also identified (Violation Charge Specification 4 Charge (Sodomy). Specifications III 1 and Order) (Adul- Charge Specification 3 of IV Honor, Your copy negative DC: [The members indicated re- just provided still sponse.] to me contains list to which Ser- ready proceed? Are both sides geant just pled Kaiser your— Is it Yes, Your Honor. TC: *3 is it that— Yes, Your Honor. DC: you Page If MJ: take look at 46 DAof proceeded The court-martial from that 27-9, you’ll Pam note that members point, Appellant electing testify with to in his are informed that that has occurred. Appellant defense. The members why specifications That’s those remain on guilty anof Article 92 and an Arti- violation Okay? it. cle 134 violation PVT E-2 CA. with He was DC: That’s fine. guilty found not Article violation Salerno, Captain any objection? MJ: SG, respect guilty with to PVT not specifications involving Article AC PFC objection, No DC: Your Honor. NW, guilty and PFC not of the Article 125 Okay. go copy MJ: Let’s ahead and have a specifications involving PVT E-2 CA and not appellate that marked as an exhibit. guilty Article 134 indecent assault We can do that on the break. make Just specification involving PFC AC. record____ goes sure that into the Following preliminary instructions and voir DISCUSSION panel, military dire of the advised military judge openly advised the the members as follows: court members at the commencement of the members, MJ: Please be seated. Court pleaded guilty that had to session, pled guilty earlier the accused charges, guilty some of the but not to others. to you several like I’d to question When defense counsel raised your flyer, take just out so that can specifi about the inclusion on the of the place pled a mark to guilty next those. He pleaded cations to which Specification to Charge Specifi- 2 of I and guilty, him advised that sorry, Specification cation—I’m 1 of specifications those remained because the I; Charge Specification I and of Charge required Military Judges’ Benchbook you’d just place if a small mark next to guilty pleas. the members be informed you’d go those. And then down to Military Judges’ Legal See Benchbook: Ser IV, Charge pled guilty Specification he to vices, 27-9, Dep’t Army, Pamphlet of the Charge guilty Specification and (1996) Judges’ Benchbook Charge. pled guilty of that And not he [hereinafter Benchbook]2. specifications charges. all other You The Benchbook not does contain such by findings are advised that the court requirement. provides The Benchbook required will not be on those following plea accepted: instruction after a specifications to which accused has al-
ready
guilty pursuant
been found
to his
The MJ should
inform
court
not
mem-
plea.
inquired
I
providence
into the
of his
plea
findings
guilty prior
bers of
plea
specifications
to those
presentation
of the evidence on another
it,
plea
provident, accepted
found his
specification
pled
be
the accused
not
which
findings
requests
and entered
guilty,
those
unless
it
the accused
specifications
just gone
have
over
to an LIO [Lessor
you.
required,
Findings
prosecution
will
how-
Included
in-
Offense]
ever,
charges
greater
toas
tends to
offense. Unless
exist,
pled
exceptions
to which the accused has
one of these two
question?
any specifieations/eharges
Does
member have a
Republished Military Judges'
provi-
2.
[hereinafter Benchbook].
Benchbook:
The referenced
Services,
Legal
Dep’t
Army, Pamphlet
27-
sions are identical
those in
at the time of
(2001)
Military Judges’
Benchbook
trial.
pleaded guilty to certain
guilty pleas if
accused had earlier
provident
other
which reflect
charged
See also United
offenses.
are
contested.
offenses
(C.M.A.1986)(in
Smith, 23
States v.
Benchbook
ease,
purpose
served
no lawful
the usual
Contrary
judge’s
statement
informing
prior
about
directs notification of
Benchbook
to which an accused
as a matter
court members
Davis,
This
in-
same directive
defer
Davis,
noted in
an error
As
such
forming
in
members of
mixed
always
does not
mandate a reversal:
plea
also
in
cases is
the discussion
910(g),
which relates
Where, however,
admission of
entry
findings. Finally,
the discussion
not violate the accused’s constitution-
does
913(a)
under R.C.M.
makes it clear that
rights,
required
al
reversal
is not
if we
“[ejxeeptions
requiring
to the rule
the mili-
prejudi-
error was not
determine
tary judge
to defer
i.e.,
cial,
fact
not influ-
if the finder of
was
prior pleas
of an accused’s
include
only slight
enced
it or
it had
specifically
in
cases
which the accused has
of the case. United States v.
on resolution
record,
requested,
Barnes,
8 M.J.
prior pleas
instruct
members of
(footnote omitted).
we
26 M.J.
449-50
As
pleas
guilty”
involving guilty
cases
acknowledged in
“Error of
further
Davis:
an LIO.
requires either au-
constitutional dimensions
whether,
inquiry
part
or an
into
The current rule is based in
on this
tomatic reversal
Rivera,
doubt,
beyond a
did not
reasonable
the error
Court’s decision United States
(C.M.A.1986),
conviction or
M.J.
where we held that
contribute to
defendant’s
(citing Chap-
n. 4
advising
sentence.”
The error here presumption specifically of innocence and case, panel In this handed effect that advance notification to members indicating charged had a mixed case has on separate specifications with thirteen crimi- presumption. presumption of inno nal conduct and was then told that longstanding cence is a feature of both mili already pleaded guilty to some tary and civilian It part law. is a critical specifications. They were not advised at that justice deeply our tradition of imbedded legal pleas, time of effect of those in our systems culture as well as our but instead heard trial counsel intimate that justice. Washington, United States v. they might “inferring” serve basis J., (C.A.A.F.2002)(Baker, con something.4 curring). under which mem- circumstances terms, legal presumption strict Appellant’s bers were advised of right innocence flows from the fundamental part a fair through trial: a fair formed a “The trial is a “filter” which *5 liberty fundamental they secured the Four- presented viewed the trial evidence at Missouri, Drope teenth Amendment. posed heightened that mem- risk the 162, 172, 95 S.Ct. L.Ed.2d 103 invited, consciously bers felt or subconscious- (1975). innocence, presumption of al- ly, to an impermissible draw from inference Constitution, though not articulated is Appellant’s guilty pleas. States Cf. component of basic a fair trial under our (C.A.A.F.1997)(dis- Riley, 47 M.J. system justice.” of criminal Estelle v. cussing impermissible of comments Williams, 501, 503, 425 U.S. 96 S.Ct. silent). right outset on to remain (1976). L.Ed.2d 126 As reflected in the lan- Finally, we that UCMJ, note was found guage 51(c)(1), of Article 851(e)(1) (2002), § presumption not of all of the inno- “dissimilar” offenses directly requirement (i.e., maltreatment, cence is related to the indecent assault and guilt by legal compe- that be established specifications), sodomy consensual but beyond tent evidence reasonable doubt. (i.e., specifications of the “similar” violation way, presumption Put another inno- adultery). a lawful order principle cence embodies the that ac- “one suggested any Government that guilt cused of a crime is entitled to have his harmless, of evi- error here as the rules solely or innocence determined on the basis permitted dence would have introduction of trial, of the evidence introduced at and not on underlying evidence of misconduct indictment, grounds suspicion, of official con- guilty pleas, independent notification custody, tinued or other circumstances proof Taylor adduced members of the actual them- at trial.” v. Ken- tucky, Rivera, (discussing selves. See M.J. at L.Ed.2d 468 potential admissibility of such evidence under 404(b) Military Rule of Evidence and under presumption was entitled to a cross-examination). While the rules evi- throughout innocence his trial. He had a may possibility, well for dence allow that we guilt to have his or innocence of the speculate as or in-what decline to whether contested determined might manner solely such evidence legal on the basis competent brought evidence introduced at trial and to the attention members. "[you] 4. Trial counsel to the made reference to state: be able to make some statement, initially asking opening inferences, in his [Appellant] pled but fact that "separate [their] mind[s]” members and to those does alone the remain- indicating government "proving charges.” der of the However, charges.” different trial counsel went ad- in the Benchbook’s contained guidance the record and review of Based on our Le- Judges’ Benchbook: Military ease, we con- vice. See present in this circumstances Army, Pamphlet Services, Dep’t of gal military judge’s decision clude Benchbook, 29, 47 27-9, Military Judges’ Appellant had the members that advise (2001)[hereinafter Benchbook] not oth- but pleaded to some offenses request ers, any specific in the absence Nevertheless, language of R.C.M. record, by Appellant on the effect made 913(a) informing the clear that to “defer harmless error.5 was not ac- which the of the offenses to judge “or- guilty” is what the
cused hence, do; CONCLUSION the Discussion’s dinarily” should among “inelude[d]” two situations mention of Army Accordingly, the decision at hand is exceptions the rule. The case Appeals is reversed and Court of Criminal short, exception. more precisely one I, Charge Specifica- guilty permitted judge’s authorization IV, are set Charge Specification 3 4 and tion what was otherwise consider The rec- set aside. sentence is aside. Rule admissible Judge Advocate returned to the of trial is ord 404(b) 803(22) Evidence for to the Court of Criminal remand General M.R.E.]. specifi- may dismiss the That court Appeals. it and reassess the sentence or cations Furthermore, object failing rehearing. order opportunity arose content when trial, objec- post-trial Appellant waived CRAWFORD, (dissenting): Judge Chief assuming flyer. Even tion to the erred, was not 913(a) [hereinaf- Rule Courts-Martial *6 Court “plain” to the extent this should following guidance provides R.C.M.] ter the decision below. reverse regarding preliminary instructions: “The military may give preliminary judge such reasons, length be- For discussed these appropriate. If mixed instructions as low, I of the lower affirm the decision would entered, military judge have court. ordinarily informing defer the mem- Guilty Pleas Were Admissible The to which the accused bers offenses Evidence pleaded guilty until on the after en- remaining have been contested offenses First, guilty were Appellant’s admis- following nonbinding The Discussion tered.” 803(22). M.R.E. 803 lists sible under M.R.E. Rule adds: hearsay rule that are exceptions to the Exceptions requiring the mili- rule availability. upon contingent a declarant’s tary judge defer 803(22), among list M.R.E. Included this is prior pleas of include of accused’s judgments prior convictions: pertaining to specifically in which the accused cases judgment, a entered after final “Evidence record, military requested, adjudging upon a ... plea a trial or prior the members of the instruct by punishable person guilty a of a crime plea a pleas of and cases which of death, discharge, imprison- or dishonorable a offense guilty was to lesser included year, any fact prove ment in excess one charged in the the contested offense within is judgment ...” essential to sustain specification. 910(g) allows admissible. R.C.M. plea guilty may be 913(a) “[findings on a Majority based The is discussion. immediately upon acceptance of the con- entered reflects the that the Benchbook correct 39(a) discussion, session.” Pursuant plea at an Article and that the tent Ap- rule, noted to to this regarding the judge misinformed counsel either standard. harmless under make determination as to whether 5. We no (C.A.A.F. Alameda, M.J. 199-200 States v. or non-constitutional error here is constitutional standards). 2002) (comparing simply the error was not We hold in nature. pellant your plea judge, Appellant “[o]n alone and having without described consensual evidence, receiving any this court can find sex in his barracks room with Private First you guilty of the offenses which (PFC) AC, Class a woman in train- who was pled guilty.” questioning After extensive ing Presidio, woman, allowing another Appellant’s pleas determined to be M.B., PFC to remain in bed his unconscious provident. The listed intoxication, having from extreme sex flyer were therefore admissible under this (SP4) CB, Specialist a a Presidio stu- rule, judgment evidence of final entered dent, meeting in her barracks room after her upon plea at a local bar. Second, Appellant’s during admissions gleaned The information from these admis- providency inquiry rendered the sions tracked the essential elements of all of 404(b). admissible under M.R.E. This rule admissions in- potential prejudice addresses the that could (trainees), type volved the same of women result knowledge from members’ other acts, type general same and the same committed, committed, allegedly by crimes or charges sexual behavior as contested al- 404(b) the accused. M.R.E. reads: “Evi leged. concerned total crimes, dence of wrongs, other acts of six women who had contact with admissible to person character of a July between December in order to show conformity action in there fraternization, included maltreat- with.” The motive behind this is the rule ment, acts, sodomy, adultery. indecent generates military’s same motive that charge fraternization under Article 92 efforts “to assure that [in trials courts- obey will addresses the failure to martial] an accused not be order or merely regulation, of one offense because he regulation prohibit- this case a Rivera, other crimes.” United States v. nonprofessional relationships with train- precisely This is ees. See Article Uniform Code of Mili- why Appellant preju claims that he has been tary UCMJ], Justice diced the members’ consideration his § 892 The Article 93 maltreatment guilty pleas. charge pertinent part punishes sexual harassment, which includes or re- “deliberate Yet, 404(b) provides M.R.E. significant *7 peated gestures offensive of a comments or exception: Such otherwise inadmissible evi- 93, UCMJ, sexual nature.” Article dence purposes, admissible “for other (2002). § sodomy charge 893 The Ar- motive, proof intent, such as opportunity, prohibits copula- ticle 125 preparation, plan, “unnatural carnal knowledge, identity, or ab- 125, UCMJ, § tion.” Article 10 sence of mistake 925 Appellant’s or accident.” U.S.C. (2002). during Finally, providency inquiry charge admissions the the Article 134 concerning specifica- the four uncontested adultery alleges indecent acts and appellant’s closely factually tions were so intertwined contrary good behavior to have to order with all of the that each admis- 134, UCMJ, discipline. and See Article 10 corresponding sion and was illus- § U.S.C. 934 The essential elements motive, Appellant’s trative of opportunity, charges, type they of these the of behavior regarding and specifica- intent the contested punish, clearly were the essential elements tions. Appellant’s guilty pleas corresponding and providency admissions. During providency inquiry the in this case Appellant’s were therefore indicative of mo- military judge meticulously the narrated the tive, intent, opportunity, preparation, facts and/or related to each uncontested and offense plan regarding specifications, the contested then asked to confirm that the accurately elements of each offense and as such were admissible under M.R.E. described 404(b).1 what replying had done. In vein, 404(b) applied analysis judge
1. In the same
this Court
its
the under-
to
whether a
lying principle
prejudicial
by informing
Rule of Evidence
committed
the
addition,
repeatedly asked
sum,
In
counsel
mis-
defense
although
the
In
Appellant’s guilty pleas
Benchbook,
witnesses whether
so in the
she did
construed
opinion of
bearing on the
witnesses’
exceptional
to
context
circumstances
Finally,
closing argument
in his
913(a), Appellant.
“ordinary”
of R.C.M.
parameters
Appellant’s
characterized
defense counsel
to consider
rightly permitting
duty
“happened off
guilty pleas as acts which
otherwise have been admissible
what would
privacy
of his barracks room”
hours
404(b).
803(22) and
under M.R.E.
and,
Appellant’s guilty
doing,
in so
reiterated
Objection
Flyer
Appellant Waived
Thus,
counsel
pleas.
did defense
905(e)
flyer’s
of all
dispute
inclusion
fail to
“objections ...
states that
opportunity
presented
when
is
be raised
the court-martial
must
before
him,
highlighted Appellant’s
but he
also
adjourned
case
...
to do
for that
and
failure
guilty pleas throughout
court-martial.
purpose
so
waiver.” The
shall constitute
expense
this rule is “to eliminate the
sum,
formally object
by failing
In
rehearing
parties
public
an issue
and
trial,
opportunity
given the
when
timely
by a
could have
been dealt
addressing
guilty pleas on
repeatedly
objection or motion
trial.” United States
court-martial,
during the
his own initiative
225,
Huffman,
v.
40 M.J.
post-trial objec-
waived
defense counsel
(C.M.A.1994)(Crawford,J., dissenting
part
flyer.
tion to the
result).
concurring
present
in the
There was no Plain Error
case,
any objection to
defense counsel waived
waived,
consider
“If an error
further
previous
members about
simply estopped
its
unless it
ation of
effect is
when he stated “that’s fine”
error’____”
qualifies
‘plain
United States
objection”
military judge’s
erro-
“no
after
Deachin,
22 M.J.
summary
neous
of the Benchbook.
(A.C.M.R.1986)(citing
Tyler,
gave
opportunity
defense counsel the
(C.M.A.1984));
385-86
see also
content,
legality
debate
Causey,
United States v.
37 M.J.
yet
nothing
say.
counsel had
This failure
Supreme Court in United
argue, coupled
explicit
with counsel’s
as-
Olano,
725, 113
States v.
S.Ct.
objection,”
that he had
sertion
“no
consti-
(1993),
Johnson
L.Ed.2d
Unit
waiver, pure
simple.
plain
Absent
tutes
States,
ed
error,
the issue is therefore not suited
(1997),
four-prong
established a
L.Ed.2d 718
appeal.
plain
remedy
To
test
to detect
error.
Furthermore,
throughout
the court-mar-
appellate
court
error not raised at
tial,
actively put Appellant’s
defense counsel
(2)
(3)
(1) error,
plain,
must find
During
(4)
his
before
members.
rights,
affects
and that
seri
substantial
statement,
opening
re-
fairness,
defense counsel
integrity,
ously
public
affects
*8
Johnson,
marked:
judicial proceedings.
reputation of
466-67,
(quoting
520
117
1544
U.S. at
S.Ct.
has an absolute
not
[The Accused]
732, 113
1770;
Olano,
at
507 U.S.
S.Ct.
Unit
say anything. That’s
the kind of
not
1, 15,
Young, 470
105
ed States v.
U.S.
S.Ct.
He came forward this
[he]
soldier
is.
(1985)).
1038,
1
84 L.Ed.2d
said,
wrong, Your
morning and
“I’ve done
I’m
of these offenses.
I’m
Honor.
The Court has defined “error” as
“devia-
Olano,
going
you
tell
it.” And he did.
about
legal rule.”
at
tion from a
507 U.S.
But,
Zerbst,
you
I
732-33,
1770;
can’t tell
about these other
v.
113 S.Ct.
Johnson
464,
1019,
things
simple
458,
L.Ed.
for one
reason: because
58
82
S.Ct.
they
happen.
“plain”
not
it is
did
can’t tell
1461
An error is
when
law,”
or “clear under current
Ola-
something
happen.
not
“obvious”
about
did
Smith,
118,
prior
121
a contested trial of the offenses
States
pleaded
to which the accused
United
“
no,
734,
1770,
panel
First, by inclining tainted the outcome of the explicit defense counsel’s recurrent open- references the members to find him of other —in statement, However, during questioning substantially of wit- similar offenses. nesses, again argu- during closing charge reproduced and then chart below provided story. the same information to the tells a different ment —
155 Reviewing hurdle. jump this final Appellant was failed specifications, the 13 total Of re- quality the evidence quantity nine only Of the contest- guilty of six. found formal- could have counsel Appellant was that defense specifications, veals ed above). opportuni- given Far from (emphasized trial when ly objected at two error, alleged detrimental, judge’s objection “could have ty, and that such ameliorated, all, actually any allowed defense significant eliminated, substantially or successfully employ counsel of the drastic well short means error Appel- throughout proceeding necessary ordering a new trial — relief — advantage. lant’s id. Pur- appeal.” remedy the error plain error prong to the fourth suant re prong of the test Finally, the fourth case not seri- in this did analysis, error quality quires court to consider both fairness, public integrity, or ously affect the evidence, as deter quantity of well proceedings. judicial reputation of timely objection in the trial “a mine whether eliminated, substantially court could sum, judge’s authorization ameliorated, any well short means error uncontested flyer’s inclusion ordering a new trial— drastic relief — “ordinary” may have exceeded the remedy appeal.” necessary to the error 913(a). in How- advised instruction Promise, 150, F.3d 194 v. 255 United States ever, judge’s authorization (4th Cir.2001)(Motz, J., concurring part consider what was members to permitted the dissenting in the dissenting part under M.R.E. otherwise admissible 466, Johnson, (citing U.S. at judgment) 520 404(b). Furthermore, 803(22) failing 1544; Young, States S.Ct. when the object content 16 n. U.S. trial, appellant waived arose at opportunity (1985); Frady, United States L.Ed.2d Finally, flyer. objection to the any post-trial 152, 163, 102 71 L.Ed.2d S.Ct. U.S. military judge did assuming that even Socony-Vacuum (1982); the extent err, “plain” to the error was not 150, 238-39, Co., S.Ct. Oil reverse the decision that this Court (1940)). assuming that Even L.Ed. 1129 below. prongs of the first three error survived the reasons, respectfully dissent. test, certainly For these judge’s plain error