Sean M. BIGELOW, Senior Airman
U.S. Air Force, Appellant
Crim. App. No. 33797
United States Court of Appeals for the Armed Forces
Argued February 26, 2002
Decided July 15, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J., joined.
For Appellant: Captain Patrick J. Dolan (argued); Lieutenant Colonel Beverly B. Knott and Lieutenant Colonel Timothy W. Murphy (on brief).
For Appellee: Major Jennifer R. Rider (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD delivered the opinion of the Court.
On November 23 and December 20-23, 1998, Senior
Airman (E-4) Sean M. Bigelow was tried by a general court-martial composed
of officer and enlisted members at Incirlik Air Base, Turkey. Contrary
to his plea, he was found guilty of wrongfully distributing LSD while receiving
special pay, in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 USC
§ 912a. On August 24, 1999, the convening authority approved the adjudged sentence of a bad-conduct discharge, one year’s confinement, total forfeitures, and reduction to Airman Basic (E-1). The Air Force Court of Criminal Appeals affirmed the findings and the sentence. 55 MJ 531 (2001).
We granted review of the following issues:
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY CONCLUDING, CONTRARY TO UNITED STATES V. GILLETTE, 35 MJ 468, 470 (CMA 1992), THAT MILITARY JUDGES ARE NOT REQUIRED TO GIVE THE STANDARD ACCOMPLICE INSTRUCTION WHEN THE ISSUE IS RAISED BY THE EVIDENCE.
III. WHETHER THE NEARLY NINE MONTHS BETWEEN THE CONCLUSION OF TRIAL AND THE CONVENING AUTHORITY’S ACTION AMOUNTED TO UNREASONABLE POST-TRIAL DELAY.
FACTS - ISSUES I and II
Since three witnesses who admitted using and possessing LSD testified they were given LSD at a party by appellant, the defense counsel at a session outside the presence of the members asked for the standard Benchbook accomplice instruction.1 The defense objected to the judge’s proposed accomplice instruction2 and urged her to give the standard Benchbook instruction. They argued that the military judge’s proposed instruction weakened the standard instruction. The military judge reviewed the standard instruction in the Gillette case and concluded that her instruction on accomplice testimony would be clearer for the court members. She also gave the following instruction on credibility of witnesses:
DISCUSSION - ISSUES I and II
Article 51(c), UCMJ, 10 USC § 851(c), requires specific instructions to be given by the judge. Article 36, UCMJ, 10 USC § 836, grants the President the authority to prescribe "[p]retrial, trial, and post-trial procedures, including modes of proof" for courts-martial. "[S]o far as ... practicable," these rules should "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States districts courts, but which may not be contrary to or inconsistent with" the UCMJ.
While the prior Manuals for Courts-Martial contained a provision concerning accomplice testimony, the present Manual does not. Paragraph 153a, Manual for Courts-Martial, United States, 1969 (Rev. ed.), provided:
While finding "the better practice [is] for courts to caution juries against too much reliance upon the testimony of accomplices," the Supreme Court recognized "there is no absolute rule of law preventing convictions on the testimony of accomplices," even though there is no cautionary instruction, and did not reverse the trial judge for failure to give such a cautionary instruction. Caminetti v. United States, 242 U.S. 470, 495 (1917).
Some federal judges, including Chief Judge Bazelon in a separate opinion, have advocated a mandatory accomplice instruction and voiced concern that absent such an instruction, an innocent individual might be convicted. United States v. Kinnard, 465 F.2d 566, 573 (D.C. Cir. 1972). Additionally, Judge Learned Hand, in a unanimous opinion, recognized that "in a close case," the failure to give such an instruction may "turn the scale." United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933). Seldom, however, has there been a reversal for the failure to provide such an instruction. Consistent with the Supreme Court’s opinion in Caminetti, federal courts generally have affirmed convictions despite the absence of such an instruction. See, e.g., United States v. Shriver, 838 F.2d 980, 983-84 (8th Cir. 1988); United States v. McGinnis, 783 F.2d 755 (8th Cir. 1986); United States v. Gonzalez, 491 F.2d 1202 (5th Cir. 1974).
Gillette was the first time we examined instructions on accomplice testimony since the Manual provisions on the subject were moved to a non-binding Discussion section. Following the "better practice" in other federal courts, this Court stated:
Upon reflection, this language may have too broadly suggested a mandatory requirement for the standard Benchbook instruction where none existed. The essential holding of Gillette is that the critical principles of the standard accomplice instruction shall be given, not necessarily the standard instruction itself, word for word. Indeed, the standard instruction may in some cases be an overstatement or an over-simplification. Appellant has not cited any instructions from civilian criminal law cases that employ language similar to the standard Benchbook instruction.
We hold that the military judge did not err in failing to give the standard accomplice instruction. Her instruction made it clear to the members that accomplice testimony may be motivated by self-interest, including receiving a grant of immunity or clemency. Additionally, she gave a credibility instruction and an instruction as to one of the witnesses regarding bad character for truthfulness.
FACTS - ISSUE III
The pertinent facts are uncontroverted and were assembled by the Court of Criminal Appeals as follows:
DISCUSSION - ISSUE III
First, appellant contends that the "nine-month post-trial delay in this case was never satisfactorily explained, even after [he] complained about it." Final Brief at 13. He argues that it should not have taken the convening authority that long to take action in his case. Moreover, he argues, this "inordinate and unexplained" delay substantially prejudiced him because he "was denied the opportunity for parole -- parole which probably would have been granted for a non-violent offender with no prior criminal record." Id. (According to appellant, "a prisoner cannot leave on parole until the convening authority takes final action on his or her case.") In fact, the delay in this case has been explained.
The Court of Criminal Appeals concluded that "the 244 days taken to prepare the record of trial and to take the necessary steps leading up to the CA action [are] neither unexplained nor inordinate." 55 MJ at 533. The court felt this way because
must report proceedings accurately. RCM 1103(i)(1)(A). In this case, the MJ properly demanded an accurate record before authentication. The goal of achieving an accurate record sometimes requires additional time from what we would aspire to under optimum conditions. This is particularly true in our overseas theaters, where distances and modes of transportation complicate the effort to achieve as speedy post-trial processing of cases as possible.
The Court of Criminal Appeals then took its analysis a step further and found that, even if the 244-day-period constituted unexplained and inordinate delay, appellant still failed to show specific prejudice. First, the Court of Criminal Appeals explained:
See AFI 51-205, The Air Force Corrections System, ¶ 10.12 (9 Apr 2001). In arriving at this conclusion, we have considered an affidavit from Mr. James D. Johnston, Executive Secretary, Air Force Clemency and Parole Board (AFCPB), Secretary of the Air Force Personnel Council, which makes it clear that nothing prohibits a prisoner from applying for parole prior to CA action and nothing prohibits the AFCPB from reviewing a case prior to such action. Moreover, even if the appellant had applied for parole, divining the outcome of such application is speculation, and therefore, provides no basis for finding specific prejudice.
We agree with the Court of Criminal Appeals that the 244-day delay was "neither unexplained nor inordinate," given the unusual circumstances in this case.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
1 The "standard" instruction referred to in the granted issue, as set forth in the Benchbook, provides:
You are advised that a witness is an accomplice if he/she was
(For example, an accomplice may be motivated to falsify testimony in whole or in part because of his/her own self-interest in receiving (immunity from prosecution) (leniency in a forthcoming prosecution) (______).)
The testimony of an accomplice, even though it may be ((apparently) (corroborated) and) apparently credible is of questionable integrity and should be considered by you with great caution.
In deciding the believability of (state the name of the witness), you should consider all the relevant evidence (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
Whether (state the name of the witness), who testified as a witness in this case, was an accomplice is a question for you to decide. If (state the name of the witness) shared the criminal intent or purpose of the accused, if any, or aided, encouraged, or in any other way criminally associated or involved himself/herself with the offense with which the accused is charged, he/she would be an accomplice whose testimony must be considered with great caution.
(Additionally, the accused cannot be convicted on the uncorroborated testimony of a purported accomplice if that testimony is self- contradictory, uncertain, or improbable.)
(In deciding whether the testimony of (state the name of the witness) is self-contradictory, uncertain, or improbable, you must consider it in the light of all the instructions concerning the factors bearing on a witness’ credibility.)
In deciding whether or not the testimony of (state the name of the witness) has been corroborated, you must examine all the evidence in this case and determine if there is independent evidence which tends to support the testimony of this witness. If there is such independent evidence, then the testimony of this witness is corroborated; if not, then there is no corroboration.)
(You are instructed as a matter of law that the testimony of (state the name of the witness) is uncorroborated.)
2 The military judge proposed and subsequently gave the following accomplice instruction:
criminally involved in an offense with which the accused is charged. The purpose of this advice is to call to your attention a factor bearing upon the witness’ believability. An accomplice may have a motive to falsify his testimony in whole or in part, because of his self-interest in the matter, that is, a motive to falsify his testimony in whole or in part, because of an obvious self-interest.
For example, an accomplice may be motivated to falsify testimony in whole or in part because of his own self-interest in receiving immunity from prosecution or some sort of clemency in the disposition of his case.
Whether or not Airman Basic Beene, [Airman First Class] Herpin, or Senior Airman Bradley[,] who each testified as a witness, was an accomplice is a question for you to decide. If Airman Basic Beene, [Airman First Class] Herpin, or Senior Airman Bradley shared the criminal intent or purpose of the accused, if any, or aided, encouraged, or in any other way criminally associated or criminally involved himself in the offense with which the accused is charged, then he would be an accomplice.
As I indicated previously, it is your function to determine the credibility of all the witnesses, and the weight, if any, you will accord the testimony of each witness.
Although you should consider the testimony of an accomplice with caution, you may convict the accused based solely upon the testimony of an accomplice, as long as that testimony wasn’t self contradictory, uncertain, or improbable.