UNITED STATES, Appellee
Shapour MEGHDADI, Private First Class
Crim. App. No. 20000029
CRAWFORD, J., delivered the opinion of the Court, in which GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
For Appellant: Captain Jeremy W. Robinson (argued); Captain Lonnie J. McAllister II, Captain Kathleen D. Schmidt, Lieutenant Colonel Mark Tellitocci, and Major Sean S. Park (on brief); Colonel Mark Cremin, Colonel Robert D. Teetsel, and Captain Charlie A. Kuhfahl.
For Appellee: Captain Abraham F. Carpio (argued); Colonel Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie A. Kolb (on brief).
Military Judges: Nancy A. Higgins and Jeffrey D. Smith
THIS OPINION IS SUBJECT TO
CORRECTION BEFORE FINAL PUBLICATION.
I. WHETHER THE ARMY COURT OF CRIMINAL
ERRED WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE AND
II. WHETHER APPELLANT’S FAILURE TO FILE THE PETITION FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER THE PETITION?
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(A) SESSION TO CONSIDER
APPELLANT SHOULD BE GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY
For the reasons set forth below, we conclude that the military judge erred in denying Appellant’s motion for a post-trial session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), to consider whether a new trial should be granted. Accordingly, we need not reach Issues I and II.
convictions for conspiring to distribute cocaine and twice distributing
rested almost entirely on the testimony of Investigator Pereira
About three months after Appellant’s trial, consistent with his pleas made pursuant to a pretrial agreement, Polanco was convicted of two specifications of wrongfully distributing cocaine and one specification of wrongfully selling Prozac. He was sentenced to a bad-conduct discharge, reduction to E-1, and a fine of $500. His sentence did not include confinement. In that case, Polanco’s defense counsel asked the military judge to find that he had been granted immunity by the actions and promises of Pereira and other CID operatives. During the hearing on that motion, the defense introduced a surreptitiously recorded audiotape of a conversation, purportedly occurring between Polanco and Pereira, after Polanco had been terminated as a CID confidential source. Only Polanco and his defense counsel knew of the recording prior to Polanco’s trial.
After Appellant’s defense counsel had obtained a copy of Polanco’s record of trial, he made a “Motion For Post-Trial 39(a) Session,” for the “purpose of examining an allegation of misconduct by . . . Investigator (INV) Luis Pereira.” This motion requested several remedies, including “a new trial, based on newly discovered evidence and fraud on the court,” and advanced a detailed factual exposition with supporting exhibits. Appellant claimed that Pereira lied at Appellant’s trial by testifying that: (1) he had not promised Polanco that Polanco would not go to jail if he helped CID; (2) he had not told Polanco that CID would assist him with his case if Polanco went to work for CID; and (3) he had not met with Polanco after Polanco had been terminated as a “registered source.” The audiotape contains passages pertinent, in varying degrees, to all three claims. Appellant contends that had the tape been played at his trial, Pereira’s credibility would have been so damaged that, when coupled with the inference that Polanco was implicating as many people as possible in order to get CID’s help in reducing his own charges, the results of Appellant’s trial would have been different.
trial, there was little evidence to corroborate Pereira’s and Polanco’s
testimony implicating Appellant, and
As noted, LTC Smith had not observed either Polanco or Pereira testify at trial. After considering the written submissions of the parties and reading a translated, unauthenticated transcript of the audiotape, LTC Smith denied the defense motion for a post-trial Article 39(a) session, for a mistrial, for a new trial, and to set aside two of the findings of guilty.
We agree with the Government’s assertion that “[m]ilitary service courts use their fact-finding powers to examine and contrast the testimony at trial with other post-trial submissions on motions for new trial.” Appellee’s Final Brief at 9 (citing United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F. 1998); United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)). Because the Court of Criminal Appeals elected summary affirmation, we lack the benefit of that court’s fact-finding and rationale as to whether the military judge properly denied Appellant’s request for a post-trial Article 39(a) session. Within the constraints of Article 67, UCMJ, 10 U.S.C. § 867 (2000), and consistent with our precedent, United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996), we will pierce the intermediate level of appellate review and examine the military judge’s ruling directly.
Rule for Courts-Martial (R.C.M.) 905(h) addresses written motions in general and provides, in part: “[u]pon request, either party is entitled to an Article 39(a) session to present oral argument or have an evidentiary hearing concerning the disposition of written motions.” R.C.M. 1102(b)(2) and (d), specifically addressing post-trial Article 39(a) sessions, contain no similar language.
In United States v. Scaff, 29 M.J. 60 (C.M.A. 1989), we removed any substantive distinction between a military judge’s authority to consider post-trial issues under R.C.M. 1102(b)(2) and R.C.M. 1210(f):
If evidence is discovered after trial which would constitute grounds for a new trial under RCM 1210(f), this might be considered a "matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence" within the meaning of RCM 1102(b)(2). However, even if the drafters of the Manual did not intend such an interpretation of this Rule, we still are persuaded that Article 39(a) of the Code empowers the military judge to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate.
29 M.J. at 65-66 (footnote omitted).
United States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993), and that “granting a petition for a new trial in the military rests ‘within the [sound] discretion of the authority considering . . . [that] petition.’” United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (quoting United States v. Lebron, 46 C.M.R. 1062, 1066 (A.F.C.M.R. 1973)). “This Court has opined that requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored. Relief is granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on profered newly discovered evidence.” Williams, 37 M.J. at 356.
Although we have not
addressed the standard to be applied in examining a military judge’s
a request for a post-trial Article 39(a) session, we have held that
appellant requests the convening authority to order a post-trial
session, it is a matter for the convening authority's sound discretion
to grant the request,” United States v. Ruiz, 49 M.J. 340, 348
1998), and that “[w]e review a military judge’s ruling on a petition
for a new
trial for abuse of that discretion.”
denying a petition for a new trial, a military judge abuses his
the findings of fact upon which he predicates his ruling are not
evidence of record; if incorrect legal principles were used by him in
this motion; or if his application of the correct legal principles to
of a particular case is clearly unreasonable.”
In denying Appellant’s motion, the military judge misapprehended the purpose of the Article 39(a) session, made factual findings that are not supported by the record, applied an erroneous legal standard, misperceived the evidentiary value of the audio tape, and made no record of any weighing of the new evidence against the evidence at trial, either on the merits or in sentencing. Further, on an issue related entirely to witness credibility, the military judge declined the opportunity personally to hear the testimony of witnesses and, in the process, denied counsel the opportunity to develop that testimony in an adversarial forum. Viewing these circumstances in the aggregate, we conclude that the military judge’s reasons and ruling were clearly untenable and that they constitute a prejudicial abuse of discretion.
A. Purpose of the Requested Post-Trial Session Under Article 39(a), UCMJ
After making factual findings, the military judge denied the relief requested by Appellant:
A post-trial Article 39(a) session to examine defense counsel’s allegations of misconduct by INV Periera is not warranted. Other mechanisms, such as a commander’s inquiry pursuant to R.C.M. 303 or an [Army Regulation] 15-6 investigation, are the proper means of conducting any such inquiry.
Despite Appellant’s citation to R.C.M. 1102 and 1210 in his motion, the military judge failed to recognize that the primary purpose of the requested inquiry into witness misconduct was to examine Appellant’s request for a mistrial or new trial, rather than to establish a basis for correction or discipline of the witnesses themselves. This failure was compounded by his erroneous view of both the facts and the rules of evidence.
B. The Military Judge’s Findings
Appellant disagrees with three aspects of the military judge’s ruling: his conclusion that the defense could have discovered the tape through due diligence; his conclusion that the voice attributed to Pereira on Polanco’s tape did not tell Polanco that Polanco’s work for CID would help Polanco’s case; and his conclusion that the remarks of Pereira on the tape could not be construed as an admission that Pereira had promised Polanco that he would not go to jail if he helped CID. For the reasons discussed below, we agree with Appellant.
evidence does not support the military judge’s finding that Appellant’s
counsel did not exercise due diligence in ascertaining the existence of
audiotape. The tape was made covertly by
Polanco and delivered to Polanco’s defense counsel, who secreted the
Polanco’s trial so as to provide maximum effectiveness in impeaching
POLANCO: I’m going to do everything right, and my woman is going to do everything okay. I don’t want my mother to die.
POLANCO: I hope so. You always told me that I would not go to jail.
POLANCO: If none of you go and testify on my behalf, even the General is going to find out about me. I am begging you for my mother.
Although not binding, the ruling of LTC Higgins, the military judge in the courts-martial of both Polanco and Appellant, who twice heard Polanco and Pereira testify and heard the inflection and tone of voice used on the tape itself (noting that the tape used a combination of Spanish and English), is informative. LTC Smith summarized LTC Higgins’s denial of Polanco’s motion for a finding of immunity by saying “[t]he military judge did not find that INV Pereira and other CID agents promised Polanco he would not go to jail.” However, what LTC Higgins actually said, in referring to Pereira and other CID Drug Suppression Team members, was:
[t]hey made promises and secured the cooperation of a registered source who performed on his end of the bargain and they immediately began back pedaling when they realized that the assures [sic] they had given might be beyond their ability to comply with. They further minimized their involvement in making these assurances in their testimony before the court, and that is to put it charitably.
C. Evidentiary Value of the Audiotape
The military judge erroneously concluded that the audiotape would not be admissible. The military judge assumed that the taped conversation would be offered only under Military Rule of Evidence (M.R.E.) 608(b) and would be inadmissible as “extrinsic evidence.” This conclusion inexplicably excludes both M.R.E. 608(c) and 613, neither of which requires the prior statement to have been probative of truthfulness and neither of which prohibits introduction of qualifying extrinsic evidence under these facts.
M.R.E. 608(c) permits introduction of evidence, extrinsic or otherwise, tending to establish bias, prejudice, or motive to misrepresent on the part of a witness:
Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.
The tape recording,
with other evidence in this case, is relevant to a fact-finder’s
of whether Pereira and Polanco had motives to misrepresent:
As to M.R.E. 613(b), the military judge concluded that “defense counsel would have been stuck with the answers INV Periera provided at Meghdadi’s court-martial, the very situation that actually occurred.” This conclusion would be correct if Pereira and Polanco admitted making their prior statements. If they denied making the statements, or equivocated, M.R.E. 613 permits the extrinsic evidence of these statements. See, e.g., United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F. 1996); United States v. Button, 34 M.J. 139, 140 (C.M.A. 1992). We hold that Appellant has firmly established the potential impeachment value of the newly discovered statements and that their value was not considered by the military judge.
D. Consideration of R.C.M. 1210(f)(3)
military judge’s ruling fails adequately to address Appellant’s claim
fraud on the court allegedly perpetrated by
Called upon to examine a close question of credibility and presented with an audiotaped conversation, largely in Spanish, filled with innuendo, implication, and conversational nuance, a military judge who had not presided at either trial declined even to hear the witnesses testify, much less allow counsel to develop that testimony.
The military judge would have done well to follow the guidance of the military judge in Scaff, who noted:
The purpose of my granting [the] request for a post-trial 39(a) session was to prevent a possible miscarriage of justice by providing for the securing of apparently extremely significant evidence at the earliest possible time. This session, I felt, would not only preserve the evidence, while still relatively fresh in the witness’ memory, compared with the state of her memory at some future . . . hearing [pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 41 (1967),] ordered by an Appellate Court, but would, in all likelihood, result in less cost to the Government.
29 M.J. at 62 (citation omitted).
We express no opinion on the question of whether Appellant is entitled to a new trial; however, we are satisfied that, given the evidentiary posture in which the request was presented, the failure to afford Appellant a forum in which to make his case was error that materially prejudiced Appellant’s substantial trial rights.
the Army Court of Criminal Appeals is reversed and the record of trial
returned to The Judge Advocate General for action not inconsistent with
opinion, to include a post-trial Article 39(a) session to consider
request for a new trial.