IN THE
CASE OF
UNITED STATES, Appellee
v.
Joie L. GILES, Operations
Specialist Third
Class
No. 97-0051
Crim. App. No. 95-0903
Argued
Decided
EFFRON, J.,
delivered the
opinion of the Court, in which GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a dissenting opinion.
Counsel
For Appellant: Major Anthony
C. Williams, USMC
(argued).
For Appellee: Captain
Glen R. Hines, Jr., USMC (argued); Commander Robert P. Taishoff, JAGC, USN (on brief).
Military
Judge: C. R. Hunt
This
opinion is subject to editorial correction before final
publication.
Judge EFFRON delivered the opinion
of the
Court.
The present appeal involves the
second time
we have reviewed Appellant’s case. At
the first trial, a general court-martial composed of officer and
enlisted
members convicted Appellant, contrary to her pleas, of two drug-related
attempt
offenses in violation of Article 80, Uniform Code of Military Justice,
[hereinafter UCMJ], 10 U.S.C. § 880 (2000).
She was sentenced to a bad-conduct discharge and reduction to
the lowest
enlisted grade. The convening authority
approved these results, and the Navy-Marine Corps Court of Criminal
Appeals
affirmed in an unpublished opinion. On
appeal, our Court set aside the findings and sentence on the grounds
that the
military judge erroneously denied a challenge for cause, and a
rehearing was
authorized.
Following our decision, a
rehearing was
conducted before a special court-martial composed of officer and
enlisted members.
Appellant was convicted, contrary to her pleas, of the two original
drug-related attempt offenses under Article 80, as well as a perjury
charge
under Article 131, UCMJ, 10 U.S.C. § 931 (2000). She
was sentenced to a bad-conduct
discharge. The convening authority
approved these results, and the Navy-Marine Corps Court of Criminal
Appeals
affirmed the findings and sentence.
I.
whether THE
II.
WHETHER THE LOWER COURT ERRED BY FAILING TO FIND THAT THE EVIDENCE OF
APPELLANT’S GUILT TO CHARGE II (PERJURY) IS LEGALLY AND FACTUALLY
INSUFFICIENT
BECAUSE THE GOVERNMENT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
THE FIRST
TRIAL HAD BEEN PROPERLY CONSTITUTED.
For the reasons set forth below, we
conclude that the
military judge erred in ruling on the severance motion
referenced
in Issue I and on related matters, and that such errors were
prejudicial. See Article 59(a),
UCMJ, 10
U.S.C. § 859(a) (2000). In light of our holding, we need not address
the remaining questions under Issue II.
I. APPELLANT’S FIRST COURT-MARTIAL
At Appellant’s first
court-martial, Appellant
was charged with two offenses, attempted possession and attempted
distribution
of controlled substances, both in violation of Article 80.
The prosecution’s evidence consisted
primarily of testimony that Appellant intended to purchase an illegal
substance. In the course of the trial,
Appellant stated that she had purchased a weight loss ingredient, and
she denied
that she believed, suspected, or knew that the item was an illegal
substance. As noted supra,
Appellant was convicted of both offenses by general court-martial, but
the
conviction was set aside on appeal.
II. APPELLANT’S SECOND
COURT-MARTIAL
1. The relationship between the drug
charges
and the perjury charge
After our Court set aside Appellant’s
original conviction, the Government referred the same two drug-related
specifications to a special court-martial.
To prevail on the drug-related specifications, the prosecution
was
required to convince the court-martial panel, beyond a reasonable
doubt, that
Appellant had purchased a substance with the intent to obtain and
distribute an
illegal substance. See Manual
for Courts-Martial,
The
Government also added a perjury charge, as follows:
In
that Operations Specialist Third Class Joie L. Giles, U.S. Navy,
Transient
Personnel Unit, San Diego, California, on active duty, having taken a
lawful
oath in a trial by general court-martial of United States v. Giles
that
she would testify truly, did, at or near Naval Station Treasure Island,
California, on or about 21 September 1994 willfully, corruptly, and
contrary to
such oath, testify falsely in substance that she did not believe,
suspect or
know that the substance she purchased on or about 15 March 1994 was
lysergic
acid diethylamide, which testimony was upon a material matter and which
she did
not then believe to be true.
To
obtain a conviction on the perjury charge, the prosecution was required
to
convince the court-martial panel, beyond a reasonable doubt, that: (1)
Appellant took an oath in a court-martial entitled United States v.
Giles
(the first court-martial); (2) the oath was required by law; (3) the
oath was
administered by a person authorized to do so; (4) Appellant willfully
testified
that she did not believe, suspect, or know that the substance was an
illegal
substance; (5) the testimony was material to Appellant’s first
court-martial;
(6) the testimony was false; and (7) Appellant did not believe that the
testimony was true at the time she testified in her first court-martial. See MCM at Part IV, para. 57.(b).(2).
As a practical matter, the perjury charge
was dependent upon the drug-related specifications.
The heart of the charged falsehood was the
allegation that Appellant knew, believed, or suspected that she had
been
provided with an illegal substance, and that she lied when she said
that she
did not believe, suspect, or know that the item was an illegal
substance. If the prosecution could not
prove the two
drug-related specifications – which required that Appellant knew,
believed, or
suspected that she was obtaining an illegal substance -- it could not
prevail
on the perjury charge. The perjury
charge was also dependent upon the record of Appellant’s earlier
court-martial. If the prosecution could
not introduce the relevant portions of an official record of the
earlier
proceeding, then it could not prevail on the perjury charge.
The interlocking evidentiary requirements
presented complications not present in a normal rehearing on
specifications of
attempted possession or attempted distribution of illegal drugs. In such a typical rehearing, evidence of an
earlier conviction for the same offense normally would be inadmissible
when the
conviction had been set aside on appeal.
See Military Rules of Evidence 401, 403, 609. In the present case, however, interjection
into the proceedings of the separate perjury charge required the
Government to
introduce evidence of a trial in which Appellant was convicted without
allowing
such evidence to spill over and prejudice Appellant’s right to a fair
trial on
the drug offenses.
2. The
severance motion
During
pretrial proceedings at Appellant’s
second court-martial, the defense brought this problem to the attention
of the
military judge through a motion to sever the perjury charge from the
drug-related specifications. As a matter
of policy, “[o]rdinarily, all known charges
should be
tried at a single court-martial.” Rule
for Courts-Martial 906(b)(10) discussion
[hereinafter
R.C.M.]. As a matter of law, a party may
move for trial of designated offenses at a separate court-martial
through a
motion for “[s]everance of offenses, but
only to
prevent manifest injustice.” R.C.M.
906(b)(10).
The military judge agreed with the defense
that it was important to protect the interests of the defense from the
prejudice that would result from placing the prior conviction into
evidence,
and sought to accomplish that through an amendment to the charge sheet. In particular, the military judge required
the Government to amend the charges by deleting the words “of
3. The
motion to restrict the prosecution’s
evidence
Following
the military judge’s ruling on
the severance motion, the defense then moved to preclude the
prosecution from
referring to Appellant’s first court-martial.
The military judge granted the defense motion in part,
incorporating the
views he expressed during consideration of the severance motion. According to the military judge, the
prosecution could proceed so long as “the government
not
refer to a conviction, the government not refer to the prior
testimony
as being a case involving U.S. v. Giles, and there’s no reason
to refer
to it as being a general court-martial.
It could just be referred to as a court-martial.”
The military judge added that the changes
would eliminate the defense concern that the members would necessarily
infer
that Appellant was the accused in the prior court-martial, and would
permit
them to infer “that the prior testimony was in someone else’s
court-martial.” The prosecution
agreed with the limitations
imposed by the military judge.
The ruling by the military judge
on the
defense motions reflected his recognition that there were three
potentially
prejudicial aspects of the evidence concerning the prior court-martial:
(1)
that it was a general court-martial; (2) that Appellant was the accused
at that
court-martial; and (3) that the prior court-martial convicted Appellant
of the
same drug-related specifications that were the subject of Appellant’s
new
trial.
4. The impact of the military judge’s ruling
on the perjury charge
During
trial on the merits, the prosecution
realized that the prohibition on referring to Appellant as the accused
in the
prior court-martial would preclude introduction of evidence necessary
to show
the materiality of the alleged false statement – evidence critical to
an
essential element of the charged crime of perjury.
Over defense objection, the military judge
modified his ruling, and permitted the prosecution to refer to
Appellant as the
accused in the prior trial. The military
judge retained the prohibition on mentioning that the trial resulted in
a
conviction, as well as the prohibition on referring to the prior trial
as a general
court-martial. The military judge also
indicated that he would offer limiting instructions at the appropriate
time to
address the defense concerns.
5. The
limiting instruction
The
prosecution subsequently introduced
documentary evidence to prove the perjury charge, including the cover
sheet
from the record of the first trial which identified Appellant as the
accused. The document also contained a
handwritten black mark, which redacted the level of court-martial. The document, which stated that the case was
tried in September 1994, contained one stamp identifying it as a “case
before
USCMR Panel No. 2” and another stamp marking it “Received 17 March
1995.”
The military judge instructed the
members
that the documentary evidence “has been admitted for your consideration
on the
elements of the specification under Charge 2, perjury, and for that
limited
perjury charge only.” The military judge
then said: “You are directed that, in making your determination [with
respect
to the drug-related specifications], that you may not consider that
there has
been a prior court-martial proceeding.”
He added: “You are also directed that you may not speculate or
draw any
inference adverse to the accused regarding possible results of a prior
court-martial proceeding.”
6. Questions from the court-martial panel
interpreting the evidence of Appellant’s prior court-martial
Shortly
after the military judge directed
the members to limit their consideration of Appellant’s prior
court-martial,
the president of the panel submitted written questions to the military
judge
that reflected precisely the type of speculation that the military
judge had
sought to discourage through his instructions.
The president’s handwritten note contained the following series
of
questions:
1. It is my understanding
that a special court-martial may or may not be a verbatim report
depending upon
the sentence adjudicated. If a discharge
is involved a verbatim report is required.
If no discharge [is] sentenced then it [is] not required by law
to be
verbatim. What happen[ed] in the
2. Does a five year statute of limitations apply
here?
3. Raise the issue about a speedy trial[?] [W]hy 4 more years before brought to trial.
4. Why a second court[-]martial
over nearly the same charges – does double jeopardy apply?
Although the president’s inquiry
reflected an
understanding on the part of the panel’s
senior member
that the first trial may well have resulted in a decision to discharge
Appellant, the military judge declined to address the substance of
these very
pointed questions. Instead, the military
judge simply repeated his earlier instruction limiting the scope of
permissible
consideration with respect to the prior court-martial.
He asked the members whether they understood
the instruction, and he obtained an affirmative response from all
members. He repeated the same instruction
prior to
deliberations, and obtained affirmative responses from the members when
he
asked them whether they understood the instruction and whether they
could adhere
to it.
III. DISCUSSION
Under R.C.M. 906(b)(10),
a military judge is required to grant a severance motion when necessary
to
avoid a “manifest injustice.” We review
such a decision for an abuse of discretion.
(1) Do
the findings reveal an impermissible
crossover of evidence?
(2) Would
the evidence of one offense be
admissible proof of the other?
(3) Did
the military judge provide a proper
limiting instruction?
The Government’s decision to try the
perjury charge at the rehearing on the underlying drug-related
specifications
instead of ordering a separate trial created a substantial risk of
impermissible crossover. The military
judge initially attempted to address this problem by limiting the
prosecution’s
use of perjury evidence. His later
modification of that ruling significantly vitiated its effect, as
illustrated
by his interchange with the president of the court-martial panel. The questions raised by the president of the
panel, based on the evidence admitted under the military judge’s
modified
ruling, reflected a well-founded suspicion that Appellant had been
tried
previously by a court-martial on the very charges that were now being
considered, and that the prior court-martial had sentenced her to a
discharge.
The pointed questions raised by the
president of the panel should not have come as a surprise to the
military judge
in light of the training and experience provided to military commanders. A military commander is responsible for
maintaining good order and discipline within his or her unit. Military commanders not only exercise law
enforcement powers, they also exercise considerable responsibility for
the
administration of military justice as forwarding and convening
authorities. The military services
typically provide commanders with training in military justice on a
regular
basis, both in the field and in professional military education courses. As a result, it is not unusual for a
commander to become reasonably well-versed in military law. The questions posed by the president of the
court-martial in this case demonstrated that the senior member of the
panel had
a reasonable basis for concluding that Appellant had been tried,
convicted, and
sentenced to a discharge for the same drug-related specifications that
were now
under consideration. While the panel
member did not know why another trial was being held, the evidence
before the
panel and the instructions of the military judge provided no basis for
the
panel member to understand that there had been anything deficient in
the prior
verdict.
This is not the case of a surprise
development at trial, or an unanticipated evidentiary ruling in the
midst of
complex testimony. The defense twice
advised the military judge of exactly what was going to happen, both in
the
motion for severance and in the motion to restrict the prosecution’s
evidence. The defense warned the
military judge that Appellant’s right to a fair trial on the
drug-related
specifications would be undermined by the perjury charge, because the
members
would figure out that Appellant was being tried for the very same
charges on
which she had previously been convicted.
The questions by the president of the panel demonstrated that
the
defense had good grounds for this concern.
Despite
these concerns, the military judge permitted the Government to
introduce evidence
on the perjury charge under which the members could reasonably conclude
that
Appellant had been tried and convicted in the first trial of the same
drug-related specifications that were before them in the second trial. They also could reasonably conclude that
something had happened between the first and second trials to convince
the
Government that Appellant had lied at the first trial when she denied
that she
had knowingly purchased an illegal substance.
Under these circumstances, the perjury evidence was both
irrelevant and
highly prejudicial to Appellant’s right to receive a fair trial on the
drug-related specifications. The
instructions by the military judge -- which he repeated without any
meaningful
amplification after the president of the court-martial identified the
prejudicial nature of the evidence -- simply told the members to
suspend their
understanding of the basic mechanics of the military justice system. As such, the instructions were insufficient
to prevent a manifest injustice. Under
the facts of this case, the rulings by the military judge on both
pretrial
motions and evidentiary objections produced errors that caused actual
prejudice
and prevented the accused from receiving a fair trial.
IV. CONCLUSION
The decision of the United States
Navy-Marine Corps Court of Criminal Appeals is reversed.
The findings and the sentence are set
aside. The record of trial is returned
to the Judge Advocate General of the Navy.
Rehearings may be ordered in
accordance with
this opinion.
CRAWFORD, Chief Judge (dissenting):
Military justice strongly
disfavors the
severance of known charges. For this
reason, a military judge should grant a severance request only
to avoid
“manifest injustice.” The military judge
in this case abated the potential for manifest injustice through a
preferred,
less drastic remedy than severance: narrowly restricting the
Government’s use
of the perjured testimony, and giving three comprehensive limiting
instructions
to the members to focus their consideration of the testimony. These remedial actions ensured that Appellant
did not suffer manifest injustice from joinder
of the two charges at a single court-martial.
Accordingly, I respectfully dissent from the lead opinion.
There is a “general policy in the
military
favoring trial of all known charges at a single court-martial.” United States v. Southworth,
50 M.J. 74, 76 (C.A.A.F. 1999)(quoting Manual
for
Courts-Martial, United States (1998 ed.), Analysis of Rules for
Courts-Martial at A21-53). See also
Rule for Courts-Martial 601(e)(2) discussion
(“Ordinarily, all known charges should be referred to a single
court-martial.”). Indeed, “unified
sentencing by a court-martial favors joining all known offenses into a
single
trial, thus exposing the accused to only one sentence for his criminal
misconduct, rather than a series of separate sentences.”
To determine whether severance is
required to
prevent manifest injustice, the court considers whether the findings
reflect an
impermissible spillover of prejudice from one charge to the other;
whether the
evidence of one offense would be admissible proof of the other; and
whether the
military judge provided a proper limiting instruction.
[A]n
abuse of discretion will be found only where the defendant is able to
show that
the denial of a severance caused him actual prejudice in that
it
prevented him from receiving a fair trial; it is not enough that
separate
trials may have provided him with a better opportunity for an
acquittal.
Applying these standards to the
case at bar,
I would find that even if there was a spillover of evidence, and even
if
evidence of the perjury offense would not have been admissible as
evidence of
the drug offense, the military judge’s remedial actions and substantial
limiting instructions prevented manifest injustice.
See
When Appellant argued at trial that the
evidence on the perjury charge would improperly bolster the
Government’s case
on the drug-related offenses, the military judge disagreed. Nevertheless, the judge expressed his
intention to provide the members with an appropriate spillover
instruction, as
well as a cleansed charge sheet omitting any mention of the following
facts:
the Appellant was the accused in the earlier court-martial proceeding
where the
perjury occurred; the proceeding was specifically a general
court-martial; and
that Appellant was convicted at that proceeding. The
judge later modified this ruling and permitted
trial counsel to explain to the members that a prior court-martial
involving
Appellant had taken place, but forbade counsel to mention that the
trial was a
general court-martial or that Appellant had been convicted. In taking these steps, the military judge
restricted the Government’s use of the perjured testimony at trial,
thereby
ensuring the Government divulged to the members extremely limited
information
about the first trial.
Moreover, in keeping with his
word, the
military judge gave three separate limiting instructions that
the
evidence of Appellant’s testimony at her prior court-martial was to be
considered solely for the perjury charge and that the fact that she had
been
tried earlier could not be considered for any purpose in determining
her guilt
on the current drug-related offenses.
The judge gave the first limiting instruction after the
Government
rested its case:
The
prosecution has introduced evidence, Prosecution Exhibit 4, which you
will
obtain a copy of in just a moment, containing the accused’s
testimony at a prior court-martial proceeding.
There have also been other references during this trial about
that. This evidence has been admitted for
your
consideration on the elements of the specification under Charge 2,
perjury, and
for that limited perjury charge only.
You
are directed that, in making your determination as to whether the
accused is
not guilty or guilty of Specifications 1 and 2 of Charge I, attempted
wrongful
possession and distribution of lysergic acid diethylamide, that you may
not
consider that there has been a prior court-martial proceeding. You are also directed that you may not
speculate or draw any inference adverse to the accused regarding
possible
results of a prior court-martial proceeding.
You
are directed that you must base your findings on Specifications 1 and 2
of
Charge I only on the evidence that is submitted before this court, and
you may
not consider any other matters whatsoever.
The judge repeated the instruction
when the
president of the court proposed questions about the transcript of the
original
court-martial. The judge stated:
Now,
I’m going to give you an instruction that I’ve given you earlier in
this
case. The prosecution, during this
trial, produced evidence, Prosecution Exhibit 4, containing the accused’s testimony at a prior court-martial
proceeding. There have been other
references to a prior court-martial.
This evidence has been admitted for your consideration on the
elements
of the specification under Charge II, perjury, and for that limited
purpose
only.
You
are directed that, in making your determination as to whether the
accused is
not guilty or guilty of Specifications 1 and 2 of Charge I, attempted
wrongful
possession and distribution of lysergic acid diethylamide, that you may
not
consider that there has been a prior court-martial proceeding. You are also directed that you may not
speculate or draw any inference adverse to the accused regarding
possible
results of a prior court-martial proceeding.
You are directed that you must base your findings on
Specifications 1
and 2 of Charge I only on the evidence that is admitted before this
court, and
you may not consider any other matters whatsoever.
Do
the members understand that instruction?
Affirmative
response from all members.
Finally, the military judge gave
the limiting
instruction a third time, just prior to member deliberations:
The
prosecution has introduced, Prosecution Exhibit 4, containing the accused’s testimony at a prior court-martial
proceeding. There have been other
references to a prior court-martial.
This evidence has been admitted for your consideration on the
elements
of the specification under Charge II, perjury, and for that limited
purpose
only.
You
are directed that, in making your determination as to whether the
accused is
not guilty or guilty of Specifications 1 and 2 of Charge I, attempted
wrongful
possession and distribution of lysergic acid diethylamide, that you may
not
consider that there has been a prior court-martial proceeding. You are also directed that you may not
speculate or draw any inference adverse to the accused regarding the
possible
results of a prior court-martial proceeding.
You
are directed that you must base your findings on Specifications 1 and 2
of
Charge I only on the evidence that is admitted before this court, and
you may
not consider any other matters whatsoever.
Do
the members clearly understand this instruction?
That’s
an affirmative response from all members.
Will
the members be able to follow this instruction?
Affirmative
response from all members.
The military judge therefore
restricted the
extent to which the Government could address Appellant’s first trial. The judge also gave comprehensive limiting
instructions, on three different occasions, directing the members that
the
evidence from the first court-martial could be considered solely
for the
perjury charge, and that the fact that Appellant testified in a prior
court-martial could not be considered for any purpose in
determining her
guilt on the current drug-related offenses.
This Court should be “confident that the military members were
able to
follow their instructions to consider [the offenses] separately.”
Based on the general policy in the
military
against severance, the combined well-known facts of this case, the
limiting
instructions on three separate occasions, and the members’ affirmative
response
that they would follow these instructions, I would dissent.