35 M.J. 644 | U.S. Navy-Marine Corps Court of Military Review | 1992
Appellant was tried by general court-martial, military judge alone, and contrary to his pleas was convicted of violating Articles 108, 121, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 908, 921, and 934. He was sentenced to a dishonorable discharge, confinement for 12 years, total forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority disapproved the findings of guilty of two specifications of larceny and; upon reassessment, approved the sentence. The Naval Clemency and Parole Board subsequently directed that confinement in excess of 8 years be remitted.
After examining the record and the briefs of the parties concerning three assignments of error,
The Article 108 Conviction as a Lesser Included Offense
Specification 1 of Charge II alleged a violation of Article 134 by selling an M16-A2 firearm “knowing or having reasonable cause to believe that the M16-A2 firearm was stolen, in violation of 18 U.S. Code Section 922.”
In that [appellant] ... did, ... unlawfully sell a stolen M16-A2 firearm, of some value, military property of the United States.4
The issue before us is whether this Article 108 offense is a lesser included offense of the Article 134 offense by violating 18 U.S.C. § 922. We hold that it is not.
The Federal Rules of Criminal Procedure were promulgated in 1944. Since that date, Federal Rule of Criminal Procedure 31(c) [hereinafter Rule 31(c) ] has provided that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged____” Indeed, Rule 31(c) was no more than a codification of preexisting law regarding conviction of a lesser included offense. Keeble v. United States, 412 U.S. 205, 208 n. 6, 93 S.Ct. 1993, 1995 n. 6., 36 L.Ed.2d 844, 847 n. 6 (1973). Article 79, UCMJ, 10 U.S.C. § 879, became law in 1951 and, mirroring the language of Rule 31(c), provides that “an accused may be found guilty of an offense necessarily included in the offense charged.” The legislative history of Article 79 makes clear that “the language of the [Article] is derived from the Federal Rules of Criminal Procedure.” A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, Hearings on H.R. 2498 Before a Subcomm. of the Comm, on Armed Services, 81st Cong., 1st Sess. 1224 (1949).
As initially drafted, the Manual for Courts-Martial, United States (MCM), 1951, adopted a strict elements test for determining lesser included offenses and provided that “[a]n offense is not included within an offense charged if it requires proof of any element not required in proving the offense charged or if it involves acts of which the accused was not apprised upon his arraignment.” MCM, 1951, 11158. This language was entirely consistent with the “elements approach” to determining lesser included
The elements approach did not remain settled doctrine in military law, however. Citing Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896), and other federal cases, the Court of Military Appeals held that “whether a lesser degree of homicide is necessarily included within that charged, depends almost exclusively on the facts stated and proved in support of the offense alleged. ” United States v. Davis, 2 C.M.A. 505, 508, 10 C.M.R. 3, 6 (1953). In United States v. Duggan, 4 C.M.A. 396, 15 C.M.R. 396 (1954), in finding that riot may be a lesser included offense of mutiny, the Court stated:
[W]e must look to the allegations of the specification, and proof in support thereof, in each case to determine whether a lesser included offense is in issue. While the standards we have adopted in considering whether one offense is included in another may be more generous than those prescribed by other courts, in an unbroken line of decisions we have made the test turn on both the charge and the evidence. When both offenses are substantially the same kind so that accused is fairly apprised of the charges he must meet and the specification alleges fairly, and the proof raises reasonably, all elements of both crimes, we have held they stand in the relationship of greater and lesser offenses.
4 C.M.A. at 399-400, 15 C.M.R. at 399-400. Subsequent cases followed this principle, and by the mid-1960’s the Duggan approach had become the “basic test” for determining whether or not an offense is included in a charged offense. United States v. Thacker, 16 C.M.A. 408, 37 C.M.R. 28, 30 (1966).
This broad approach for determining lesser included offenses was reiterated by the Court of Military Appeals in United States v. Baker, 14 M.J. 361 (C.M.A.1983). In addition to a traditional elements approach, the Court stated that a lesser included offense also exists “where one offense contains different elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and established by evidence introduced at trial.” Id. at 368. This expansive approach is similar to the inherent relationship test for determining lesser included offenses under Rule 31(c) that developed in the federal courts and which is discussed infra.
Thacker is the cited basis for the present Manual rule for determining lesser included offenses. MCM, 1984, Part IV, II2, Analysis. The present Manual rule encompasses the first part of the “fairly embraced” approach in Baker by providing that “[a] lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged.” MCM, 1984, Part IV, 112. The 1984 Manual, however, makes no reference to the evidence adduced in the trial. The notice requirement may be met by a strict analysis of the elements; however, “[t]he notice requirement may also be met, depending on the allegations in the specification, even though an included offense requires proof of an element not required in the offense charged.” Id.
A similar divergence from a strict elements approach to determining lesser included offenses developed in the federal courts. See United States v. Schmuck, 840 F.2d 384, 387 n. 5 (7th Cir.1988) (cases cited in footnote). Some circuits adhered to the “traditional” or “elements” approach.
Under this test, one offense is not “necessarily included” in the other unless the elements of the lesser offense are a subset of the elements of the charges offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).
[W]hen a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must be an “inherent” relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.
447 F.2d at 319. See Schmuck v. United States, 489 U.S. at 715-16, 109 S.Ct. at 1450, 103 L.Ed.2d at 746. The inherent relationship approach is obviously similar to the approach set forth in Davis, Duggan, and Baker.
The variance in approaches between the circuits continued until 1989 when it was resolved by the U.S. Supreme Court in Schmuck v. United States. The Court unequivocally adopted the elements approach to Rule 31(c). The Court noted, first, that the wording of Rule 31(c) supports use of the elements approach. Additionally, the Court stated that constitutionally “a defendant cannot be held to answer a charge not contained in the indictment brought against him,” based in part on his right to “notice of the charge brought against him.” 489 U.S. at 717, 109 S.Ct. at 1451, 103 L.Ed.2d at 747. Consideration of the evidence adduced at trial in determining whether a lesser included offense instruction should be given may not provide the defendant with constitutionally sufficient notice to defend since this determination occurs after trial on the merits. Second, the Court found that the history of Rule 31(c) supported adoption of the elements approach. Lastly, the Court found that the elements approach “is far more certain and predictable in its application than the inherent relationship approach.” 489 U.S. at 720, 109 S.Ct. at 1452, 103 L.Ed.2d at 749.
Davis, which began the expansion of the military approach towards determining lesser included offenses and was the immediate forerunner of Duggan, was in part based on the U.S. Supreme Court’s decision in Stevenson, as noted previously. Stevenson, however, was cited in Schmuck, 489 U.S. at 720, 109 S.Ct. at 1452, 103 L.Ed.2d at 746, as an example of a case in which the U.S. Supreme Court carefully compared statutory elements in determining the existence of a lesser included offense. In Baker, the Court of Military Appeals said that its “fairly embraced” approach was “consistent with the accepted interpretation of modern criminal statutes.” 14 M.J. at 368. The cited decisional authority for this conclusion is Jeffers v. United States, 432 U.S. 137, 152 n. 20, 97 S.Ct. 2207, 2217 n. 20, 53 L.Ed.2d 168, 181 n. 20 (1977), a citation now inapposite in light of the statement in Schmuck that U.S. Supreme Court “decisions after the adoption of Rule 31(c), while not formally adopting the elements approach, reflect adherence to it. Those decisions have focused on the statutory elements of individual offenses when considering the propriety of lesser included offense instructions.” 489 U.S. at 720 n. 11, 109 S.Ct. at 1452 n. 11, 103 L.Ed.2d at 749 n. 11. Schmuck provides an authoritative interpretation of Rule 31(c) and thus Article 79. In interpreting previous U.S. Supreme Court and federal circuit decisions, the decision makes clear that these cases provide no authority or precedent for the “fairly embraced” approach of Baker.
Based on Schmuck, the Court of Military Appeals already has indicated that the broad Baker approach is no longer appropriate. See United States v. Carter, 30 M.J. 179, 181 (C.M.A.1990). We conclude that because Article 79 is derived from, and is identical in wording to, Rule 31(c) which after Schmuck requires an elements approach in determining lesser included offenses, and because the cited decisional authority and precedent in Davis, Duggan, and Baker has been shown to
In determining whether the Article 108 offense of which appellant was convicted is necessarily included in the offense charged, we employ the elements approach set forth in Schmuck to determine whether the elements of the Article 108 offense “are a subset of the charged offense.” Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450, 103 L.Ed.2d at 746. We find that they are not.
Accordingly, the finding of guilty of Specification 1 of Charge II is set aside and the specification is dismissed. Assignments of error I and II are without merit. Because of our action below, assignment of error III need not be addressed.
Prosecution Evidence of Appellant’s Father’s Criminal History
Prosecution evidence introduced prior to findings showed that appellant had given the stolen firearm to his father prior to its sale to a government informant. During the presentencing portion of the trial a Naval Investigative Service (NIS) agent testified for the prosecution that the father had a criminal record going back to 1959 based on a report he had seen that was sent to a local police agency from the National Crime Information Center (NCIC), a part of the Federal Bureau of Investigation (FBI). That record included involvement in breaking and entering, being a fugitive from justice, and conviction for murder in New York. Additionally, the agent said that local police had informed him that the father had recently tried to place a bomb under another person’s vehicle. The agent further testified that he provided an affidavit for use at the father’s parole revocation hearing, that the father’s parole was revoked, and that the father was in prison at the time of this trial. The only apparent basis for introduction of this testimony was to show the impact on society of appellant’s transfer of the M16-A2 to a dangerous convicted felon.
The “fact that is of consequence” to be established by the agent’s testimony is that appellant’s father was convicted of the offenses mentioned by the agent, not the fact that entries to that effect appear in the NCIC database. See Mil.R.Evid. 401. Mil. R.Evid. 602 makes clear that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” The record establishes beyond any doubt that the agent had no personal knowledge of the criminal convictions except from reading the NCIC report.
The agent testified regarding the civilian convictions solely based on the report which was hearsay and therefore was inadmissible itself unless it qualified as an exception to the hearsay rule under the Military Rules of Evidence or was admissible on another ground. See Rule for Courts-Martial 1001(b)(3)(C). It goes without saying that the contents of an inadmissible hearsay document may not be made admissible by having a witness read the report and appear at trial to testify as to its contents. Based on the evidence in this record, the report does not qualify as a record of a regularly conducted activity under Mil.R.Evid. 803(6)
Nor does the report qualify as a public record or report under Mil.R.Evid. 803(8).
Even had the agent been able to lay an adequate foundation to establish a hearsay exception for admission of the report itself, another objection to consideration of the contents of the report is evident. A fundamental aspect of the NCIC report is that the information contained within it concerning appellant’s father’s criminal history was based on hearsay information received at the NCIC. Thus, the hearsay report included hearsay information that itself was inadmissible unless it qualified under an exception to the hearsay rule of the Military Rules of Evidence. Mil. R.Evid. 805.
Mil.R.Evid. 805 was violated in this case because nothing in the record establishes what information is sent to the NCIC that prompts an entry into the database. A portion of the agent’s testimony suggests that information concerning an offense may be received even prior to the time a formal charge is made. This testimony comports with our common knowledge that the NCIC database contains reports of arrests and entry of formal charges as well as convictions. Nothing in the record establishes an exception to the hearsay rule for the information received and relied upon by NCIC employees in entering information into the database. If, however, the agent had testified based on a general familiarity with the requirements and procedures employed at the NCIC that entries are only made upon receipt of information that satisfies the requirements of the Military Rules of Evidence for authentication, see Mil.R.Evid. 901, 902, and a hearsay exception, Mil.R.Evid. 805 would not have been violated. We conclude that the testimony of the agent about the contents of the report was inadmissible.
Conclusion
Specification 1 of Charge II embraces a serious criminal act separate from the theft of the firearm. In addition, the erroneously admitted evidence concerning appellant’s father’s alleged criminal history is highly prejudicial and probably was an important sentencing factor. We conclude that reassessment of the sentence in accordance with the principles set forth in United States v. Peoples, 29 M.J. 426 (C.M.A.1990) and United States v. Sales, 22 M.J. 305 (C.M.A.1986) is inappropriate.
Accordingly, the sentence is set aside. The record is returned to the Judge Advocate General of the Navy. A rehearing on sentence is authorized.
Senior Judge JONES and Judge REED concur.
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I. THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO DISMISS ALL CHARGES AND SPECIFICATIONS BECAUSE APPELLANT’S WRITTEN CHRONOLOGY AND DISCUSSION NOTES, WHICH WERE SEIZED BY THE GOVERNMENT WHEN HE WAS INCARCERATED AT THE FORT MEADE CORRECTIONAL FACILITY, WERE PRIVILEGED LAWYER-CLIENT COMMUNICATIONS PROTECTED BY MILITARY RULE OF EVIDENCE 502(a).
A. ALL OF THE DOCUMENTS SEIZED FROM APPELLANT ON 24 AUGUST WERE CONFIDENTIAL COMMUNICATIONS BETWEEN APPELLANT AND HIS DETAILED TRIAL DEFENSE COUNSEL.
B. APPELLANTS ATTORNEY-CLIENT PRIVILEGE WAS VIOLATED WHEN THE GOVERNMENT INTENTIONALLY RETAINED CONFIDENTIAL DOCUMENTS PREPARED BY APPELLANT AT THE REQUEST OF HIS COUNSEL FOR USE IN HIS DEFENSE.
C. THE BREACH OF APPELLANT’S ATTORNEY-CLIENT PRIVILEGE BY THE GOVERNMENT SUBSTANTIALLY PREJUDICED APPELLANT, AND THE MILITARY JUDGE ERRED IN FAILING TO GRANT THE APPROPRIATE RELIEF.
II. THE EVIDENCE PRESENTED AT TRIAL FAILED TO PROVE BEYOND A REASONABLE DOUBT APPELLANT’S GUILT AS TO SPECIFICATIONS 1-8 OF ADDITIONAL CHARGE II.
III. THAT PORTION OF APPELLANTS SENTENCE INCLUDING CONFINEMENT FOR 12 YEARS IS INAPPROPRIATELY SEVERE.
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1. In Specification 1 of Charge II the accused was charged with unlawfully selling a stolen firearm in violation of Article 134, UCMJ; he was found guilty by exceptions and substitutions of a violation of Article 108. Record at 416 and 448. Is Article 108 a lesser-included offense of Article 134?
2. If Article 108 is a lesser-included offense of Article 134, does the finding, as announced by the military judge, allege an offense? Or, must the finding of guilty to an Article 108 specification include the words "without proper authority?”
3. Did Special Agent Kennedy’s testimony parading the legal problems of the appellant’s father before the Court during aggravation on sentencing (R. 424 ff.), so taint the sentencing proceedings as to require a rehearing on sentence? See generally, United States v. Stroup, 29 M.J. 224 (C.M.A.1989).
. The specification failed to list an element of the federal statute, namely, that “the stolen firearm was moving as, part of, or constituted interstate commerce." See footnote 6, infra. Appellant did not attack the sufficiency of the specification at trial and does not allege its failure to state an offense on appeal.
. As excepted and substituted, the specification does not contain the words "without proper authority," an element of an Article 108 offense. The specification as excepted and substituted did state that the sale was unlawful and that the firearm was stolen, language that clearly embraces the concept of the term "without authority." The substituted language of "some value” is mere surplusage since value is irrelevant if the item sold is a firearm. Manual for Courts-Martial, United States, 1984, Part IV, ¶ 32e(l)(b).
. Article 36(a), UCMJ, 10 U.S.C. § 836(a) states:
Pretrial, trial, and post-trial procedures, including methods of proof, for ... courts-martial ... may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
. The elements of the 18 U.S.C. § 922(j) offense alleged in the specification are that appellant (1) sold a stolen firearm (2) which was moving as, which was a part of, or which constituted interstate or foreign commerce (3) knowing or having reasonable cause to believe that the firearm was stolen. 18 U.S.C. § 922(j).
. Our action makes it unnecessary to address the remaining specified issues regarding the finding of guilty of this specification and charge.
. Trial counsel explained that he offered the testimony to show the impact on society of appellant placing an M16-A2 into the hands of a convicted felon. We presume that the evidence was offered pursuant to Rule for Courts-Martial 1001(b)(4) as an aggravating circumstance directly relating to or resulting from the offense of stealing the firearm.
. The agent testified that the NCIC report was attached to the NIS investigation regarding the theft and sale of the M16-A2. Trial counsel indicated that he could offer the NCIC report itself but chose to rely on the agent’s testimony regarding it. We cannot comprehend why trial counsel did not offer the report into evidence in lieu of the agent’s perhaps faulty memory of its contents. Trial defense counsel made no objection to the testimony based on the best evidence rule found in Mil.R.Evid. 1002, accordingly, that objection is waived. This was a trial before military judge alone who certainly had discretion to invoke Mil.R.Evid. 1002 and examine the report to ensure the accuracy of the agent’s testimony. Had he done so, we strongly suspect that errors in the agent’s testimony would have been apparent to him.
. Mil.R.Evid. 803(6), Records of a Regularly Conducted Activity, provides:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses,' made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
. Mil.R.Evid. 803(8), Public Records and Reports, provides:
Records, reports, statements, or data compilations, in any form, of public office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers or other personnel acting in a law enforcement capacity, or (C) against the government, ..., unless the sources of information or other circumstances indicate lack of trustworthiness.
. Mil.R.Evid. 805, Hearsay Within Hearsay, provides:
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
. Because the agent testified about the contents of a hearsay document that contained hearsay of doubtful trustworthiness, his testimony probably should have been excluded under Mil. R.Evid. 403. We agree that "[a]lthough Rule 805 admits hearsay within hearsay as long as there are exceptions that satisfy each hearsay problem, it probably is the case that the more levels of hearsay pyramided together the more likely it is that the court will exclude evidence under Rule 403." Stephen A. Saltzburg Et Al, Military Rules of Evidence Manual 872 (3rd ed. 1991). In this case, the testimony carried an obvious danger of unfair prejudice and of misleading the sentencing authority due to its questionable accuracy and completeness. Indeed, had trial counsel obtained and offered proof of
