IN THE CASE OF
UNITED STATES, Appellee
v.
Shane T. SEIDER, Airman First Class
No. 04-0082
Crim. App. No. 35154
Argued
Decided
ERDMANN, J., delivered the opinion of the Court, in which GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a separate dissenting opinion.
Counsel
For Appellant: Major Andrew S. Williams (argued); Major Terry L. McElyea and Captain Jennifer K. Martwick (on brief).
For Appellee: Major John C. Johnson (argued); Colonel LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: S. A. Hatfield
This opinion is subject to
editorial
correction before final publication.
Judge ERDMANN delivered the opinion
of the Court.
Appellant, Airman
First Class Shane T. Seider, was tried by a general court-martial
consisting of
members. He was charged with the
wrongful use of cocaine on divers occasions and wrongfully distributing
cocaine
in violation of Article 112a, Uniform Code of Military Justice [UCMJ],
10
U.S.C. § 912a (2000). Although Seider
pleaded not guilty to both specifications, he was found guilty of
wrongfully
distributing cocaine as charged and of wrongfully using cocaine except
the
words “on divers occasions.”
Seider was sentenced to a
bad-conduct discharge, confinement for 15 months, forfeiture of all pay
and
allowances, and reduction to the lowest enlisted grade.
The convening authority approved the sentence
and the Air Force Court of Criminal Appeals affirmed the findings and
sentence
in an unpublished opinion.
WHETHER,
IN LIGHT OF UNITED STATES V. WALTERS, 58 M.J. 391 (C.A.A.F.
2003), THE
AIR FORCE COURT ERRED IN AFFIRMING APPELLANT’S CONVICTION FOR WRONGFULY
USING
COCAINE BECAUSE THERE WAS NO WAY TO KNOW WHICH USE OF COCAINE THE
MEMBERS FOUND
APPELLANT GUILTY OF.
We hold
that the Air Force Court of Criminal Appeals erred.
FACTS
Seider was
arraigned and tried upon two specifications alleging
violations of Article 112a.
Specification 1 alleged the wrongful use of cocaine “on divers occasions” as follows:
In
that Airman First Class Shane T. Seider, United States Air Force, 559th
Flying
Training Squadron, Randolph Air Force Base,
Trial counsel asserted
in his opening statement that the Government would prove two cases.
Government evidence presented in
support of this offense revealed two distinct instances during which
Seider
allegedly used cocaine. Airmen Basic
Castonguay, Bennett, and Chavez each testified that while playing cards
and
drinking at Seider’s apartment, Seider provided cocaine and used the
substance
himself. Airman Basic Castonguay also
testified that about a month earlier he had been at Seider’s home
watching
football when Seider provided and used cocaine.
This testimony about two distinct events formed the only
evidentiary
basis for the allegation of wrongful use of cocaine “on divers
occasions.”
As part of his sentencing
instructions the military judge advised the members:
As
to Specification 1 of the Charge, if you have doubt the accused
wrongfully used
cocaine on divers occasions, but you are
satisfied
beyond a reasonable doubt that the accused wrongfully used cocaine
once, you
may still reach a finding of guilty; however, you must change the
specification
by exception, i.e., deleting the words “on divers occasions.”
This instruction was
not accompanied by instructions about substitutions to specify a single
use on
or about a given date and the military judge did not provide any
instruction on
how to make exceptions and substitutions on the findings worksheet. During his argument on findings, trial
counsel variously referred to the evidence of use “on more than one
occasion,”
“on divers occasions,” “on an additional occasion,” “during both
occasions,”
“on a second occasion,” and “on two occasions.”
The Government clearly relied upon evidence of the two separate
incidents to prove use “on divers
occasions.”
Prior to the
announcement of the findings, the military judge examined the findings worksheet, noted one minor correction with
respect to a
finding on the Charge and determined the worksheet to be “in proper
form.” The president of the court
announced that the
members found Seider “of Specification 1 of the Charge:
Guilty, except the words: ‘on divers
occasions.’ Of the excepted words, Not
Guilty, of the remaining words, Guilty.”
The members made no substitutions to specify which of the two
uses
presented by the Government was proven beyond a reasonable doubt. The military judge did not direct and the
parties to the trial did not request any clarification of the findings.
DISCUSSION
The issue in this case
focuses upon the uncertainty in this particular verdict – a
circumstance
involving the conversion of a “divers
occasion”
specification to a “one occasion” specification through exceptions. We addressed this same uncertainty in United
States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), where we held that
the
military judge erred “in giving incomplete instructions regarding the
use of
findings by exceptions and substitutions and in failing to secure
clarification
of the court-martial’s ambiguous findings prior to announcement.”
While the Government conceded at
oral argument that this verdict presented a Walters problem at
the trial
level, they argue that the uncertainty presented by the verdict was
resolved by
the Court of Criminal Appeals. The
Government further argued that this case is “substantially different”
than Walters. Unlike Walters
which involved evidence
of as many as six instances of drug use, the Government urges that this
case
involves evidence of only two discrete alleged instances and that the
record
provides a clear, sufficient factual basis for the Court of Criminal
Appeals to
review the finding and resolve any ambiguity.
The Government’s argument finds support in the Court of Criminal
Appeals’ per curiam opinion:
We reviewed the record of trial for
the legal and factual sufficiency of the evidence.
Article 66(c), UCMJ, 10
U.S.C. § 866(c);
Seider,
ACM 35154, slip op at 1-2.
While recognizing that the military
judge erred in failing to give complete instructions and failing to
secure
clarification of the court-martial’s ambiguous findings prior to
announcement, the
Government overlooks a central holding in Walters. Because the findings of guilty and not guilty
do not disclose the conduct upon which each of them was based, the
Court of
Criminal Appeals cannot conduct a factual sufficiency review of
Appellant’s
conviction. As we noted in Walters,
the Court of Criminal Appeals is prevented from even conducting its
factual
sufficiency review by the fundamental rule that the “Court of Criminal
Appeals
cannot find as fact any allegation in a specification for which the
factfinder
below has found the accused not guilty.”* Walters, 58 M.J.
at 395 (citing United States v. Smith, 39 M.J. 448, 451 (C.M.A.
1994)). In turn, where we cannot determine
whether the
Court of Criminal Appeals reviewed and affirmed an offense of which
Seider was
acquitted, we cannot affirm that finding.
DECISION
Accordingly, the decision of the Air Force Court of Criminal Appeals as to Specification 1 of the Charge and the sentence is reversed, but is affirmed in all other respects. The finding of guilty of Specification 1 of the Charge and the sentence are set aside and Specification 1 is dismissed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That Court may either reassess the sentence based on the affirmed guilty findings or order a rehearing on the sentence.
*
The fact that this
case involved only two incidents while Walters involved six
incidents
does not impact upon the inability of the Court of Criminal Appeals to
conduct
a factual sufficiency review of the conviction. The defect is neither a
question of the legal or factual sufficiency of the evidence of one
alleged use
versus the other, nor is it a question to be resolved by weighing
evidence and
concluding that evidence of one use is quantitatively or qualitatively
inferior.
CRAWFORD, Chief Judge (dissenting):
I
respectfully dissent from the lead opinion on several grounds. First, the majority unnecessarily creates a
sweeping rule on what should be an extremely fact-specific issue. To this end, the lead opinion fails to
recognize the features of this case which distinguish it from Walters,
and therefore render the Walters holding inapplicable.
On the first point, the allegation of committing an offense on “divers occasions” exists not only under the facts of this case and Walters, but also in the context of sexual abuse, e.g., United States v. Wellington, 58 M.J. 420 (C.A.A.F. 2003); carnal knowledge, United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003); leaving a daughter unattended, United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003); sexual harassment, United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001); conduct unbecoming an officer, United States v. Rogers, 54 M.J. 244 (C.A.A.F. 2002); and numerous drug offenses, e.g., United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002); United States v. Downing, 56 M.J. 419 (C.A.A.F. 2002); United States v. Grant, 56 M.J. 410 (C.A.A.F. 2002).
Given the myriad of factual scenarios which might generate a charge of committing an offense on “divers occasions,” this Court should address the issue presented through a fact-specific inquiry with a fact-specific holding, interpreting Walters through the lens of its unique facts. Instead, the majority applies Walters in a sweeping fashion, with the inevitable consequence of an immeasurable impact on military justice.
To
this end, the instant case is distinguishable from Walters. In
Walters, the accused was charged with wrongful use of ecstasy
“at divers
occasions” between April 1 and
[I]f you do what is called findings by exceptions and
substitutions, which is the variance instruction I have given you
earlier,
where you may – and this is just an example – on the divers uses, you
may find just
one use, and you except out the words divers uses and you substitute in
the
word one time, or something like that . . . .
Walters, 58 M.J. at 393.
The members excepted
the words “at divers occasions” and substituted the words on “one
occasion.”
In
reviewing the finding on appeal, a majority of this Court noted that
the
verdict was ambiguous and that “[w]hile [the] hypothetical example of a
finding
by exceptions and substitutions was well intended, it was less than
complete.”
Where a specification alleges wrongful acts
on “divers occasions,” the members must be
instructed that
any findings by exceptions and substitutions that remove the “divers
occasions”
language must clearly reflect the specific instance of conduct upon
which their
modified findings are based. That can
generally be accomplished through reference in the substituted language
to a
relevant date or other facts in evidence that will clearly put the
accused and
the reviewing courts on notice of what conduct served as the basis for
the
findings.
.
. . .
In sum, the military judge
erred in giving
incomplete instructions regarding the use of findings by exceptions and
substitutions and in failing to secure clarification of the
court-martial’s
ambiguous findings prior to announcement.
The Court of Criminal Appeals, in turn, could not conduct a
factual
sufficiency review of Appellant’s conviction because the findings of
guilty and
not guilty do not disclose the conduct upon which each of them was
based. Appellant has a substantial right
to a full
and fair review of his conviction under Article 66(c) and the ambiguity
in the
court-martial’s findings results in material prejudice to that right. See Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2000).
The majority’s concern
in Walters was that the original instructions with the
hypothetical, the
query by the members, and the ultimate findings made it impossible for
the
Court of Criminal Appeals to conduct a factual sufficiency review. This concern is not present in the instant
case, because the conduct upon which Appellant’s guilty finding was
based is
clear: the one occasion of cocaine use described in detail by all three
witnesses. In other words, in assessing
Appellant’s charge of drug use on “divers
occasions,”
the members faced two possible occasions of drug use: one described in
extremely similar detail by three different witnesses, and the other
described
hazily by only one witness. By excepting the words “divers occasions” from their
findings,
the members indicated their understanding that Appellant did not use
cocaine on
both occasions, but rather on only one, and it is clear on which
occasion that
was. Given this clarity, the members did
not require clarification of the worksheet based on a confusing
hypothetical
example by the military judge as was the case in Walters. “It is assumed that twelve men know more of
the common affairs of life than does one
man, that
they can draw wiser and safer conclusions from admitted facts thus
occurring
than can a single judge.” R.R. Co. v. Stout, 84
Moreover, in Walters
the lower court made the following conclusion as to the ambiguity of
the
appellant’s findings:
The court members found the appellant
guilty of the wrongful use of ecstasy on one occasion between about 1
April and
Three
witnesses testified that the appellant distributed and used cocaine
during a
card game at the appellant’s off-base apartment. One
of the three witnesses provided vague
testimony about one additional use of cocaine.
Exercising our fact-finding power under Article 66(c), UCMJ, we
are
convinced beyond a reasonable doubt that the appellant used and
distributed
cocaine during a card game at the appellant’s off-base apartment. We are similarly convinced that this was the
basis for the court members’ finding of guilty for this specification.
United
States v. Seider, ACM No. 35154, slip op. at
1-2 (A.F. Ct. Crim. App. Aug. 11,
2003). Thus, the
In short, the level of
certainty as to the findings in this case far exceeds the certainty in Walters. Indeed, the occasion of cocaine use for which
the members convicted Appellant is quite clear.
Consequently, the Court of Criminal Appeals in this case was
able to
conduct an adequate factual sufficiency review of Appellant’s
conviction, in
keeping with Appellant’s “substantial right to a full and fair review
of his
conviction under Article 66(c).” Walters,
58 M.J. at 397.
In the instant case, the majority
could have limited Walters to its unique facts, held that the
judge
failed to instruct the members that if they find the accused guilty of
an
allegation as to divers occasions, the proof as to any one of those
occasions
must be beyond a reasonable doubt.
Instead, the majority has unnecessarily created a sweeping
holding.
Finally,
the majority fails to recognize that because Appellant waived the issue
by
remaining silent at trial, he cannot prevail on appeal in the absence
of plain
error. Specifically,
defense counsel failed to move for a bill of
particulars, failed to move to limit duplicitous pleadings, and failed
to
object to the members’ findings.
Failure by a party . . . to make motions or requests which must
be made before pleas are entered . . . shall constitute waiver. . . . Other motions, requests, defenses, or
objections, except lack of jurisdiction or failure of a charge to
allege an
offense, must be raised before the court-martial is adjourned for that
case
and, unless otherwise provided in this Manual, failure to do so shall
constitute waiver.
Rule for
Courts-Martial 905(e).
Because Appellant did not at trial challenge what he in
retrospect
alleges were ambiguous findings, he should not now be afforded the
opportunity
to address what “could have been dealt with by a timely objection or
motion at
trial.” United States v.
Huffman, 40 M.J. 225, 229 (C.M.A. 1994)(Crawford, J., dissenting in
part and
concurring in the result).
“If
an error is waived, further consideration of its effect is simply
estopped
unless it qualifies as ‘plain error’. . . .”
United States v. Deachin, 22 M.J. 611, 614 (A.C.M.R.
1986)
(citing United States v. Tyler, 17 M.J. 381, 385-86 (C.M.A.
1984)); see
also
Even assuming error in
the military judge’s instructions to the members, such action did not
materially prejudice Appellant. The
evidence of record overwhelmingly supports two conclusions: (1) Appellant is guilty beyond a reasonable
doubt of using cocaine; and (2) he committed this act on the one
occasion
supported by all three witnesses. Thus,
any error on the part of the military judge in failing properly to
instruct the
members on findings by exceptions and substitutions did not prejudice
Appellant.
For these reasons, I
respectfully dissent.