UNITED STATES, Appellee
v.
No. 04-0238
Crim. App. No. 34918
Argued
Decided
BAKER,
J., delivered the opinion of the Court, in which GIERKE, C.J.,
and EFFRON and ERDMANN, JJ., joined.
CRAWFORD, J., filed a dissenting opinion.
Counsel
For Appellant: Captain Martin L. Powell (argued); Colonel Beverly B. Knott, Lieutenant Colonel Carlos L. McDade, and Major Terry L. McElyea (on brief).
For Appellee: Captain Kevin P. Stiens
(argued); Colonel Gary F. Spencer, Lieutenant Colonel
Robert V. Combs,
and Major
Military Judge: Gregory E. Pavlik
THIS OPINION IS SUBJECT TO REVISION BEFORE
FINAL
PUBLICATION
Judge BAKER delivered the opinion of the Court.
Appellant was tried by members at a general court-martial. In accordance with his pleas, he was convicted of three specifications of writing bad checks with the intent to defraud in violation of Article 123a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 923a (2000). Contrary to his pleas, he was convicted of unauthorized absence and larceny1 in violation of Articles 86 and 121, UCMJ, 10 U.S.C. §§ 886, 921 (2000), respectively. The adjudged and approved sentence provided for a dishonorable discharge, confinement for two years, forfeiture of all pay and allowances and reduction to grade E-1. The United States Air Force Court of Criminal Appeals affirmed the findings and sentence in a short-form per curiam opinion. United States v. Harris, No. ACM 34918 (A.F. Ct. Crim. App. Dec. 5, 2003).
The issue before us is whether Appellant’s petition for new trial should be granted based on newly discovered evidence of Appellant’s lack of mental responsibility. For the reasons that follow, the petition is granted as to the contested offenses. Further, and for different reasons, we conclude that Appellant’s pleas of guilty must be set aside.
BACKGROUND
Appellant
was a twenty-year-old E-3 at the time of the offenses.
On or about
Prior
to trial,
Appellant’s defense counsel learned that before joining the military,
Appellant
had received psychological counseling.
As a result, counsel requested a sanity board convened under
Rule for
Courts-Martial (R.C.M.) 706 on
Following
his subsequent conviction, and during his confinement at the Naval
Confinement
Facility in
As part of Appellant’s clemency submissions, trial defense counsel submitted an affidavit from LT LaCroix detailing her diagnosis. Based upon her determination that Appellant “was not able to control his actions or appreciate the wrongfulness of his conduct due to psychiatric symptoms [at the time of the offenses],” trial defense counsel requested that the convening authority grant a new trial or, in the alternative, disapprove the adjudged dishonorable discharge. Instead, the convening authority ordered a post-trial session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000). According to the convening authority’s memorandum to the military judge, the stated purpose of the session was “to inquire into a matter which has arisen post-trial . . . which may substantially affect the legal sufficiency of your findings of guilty.” The memorandum further defined the scope of the session as “a limited inquiry to determine whether the accused’s pleas of guilty were provident and should have been accepted” in light of LT LaCroix’s diagnosis and conclusions.3
The
Article 39(a) session was conducted on
After
receipt of
the military judge’s findings and conclusions, the convening authority
ordered
a second sanity board be convened.
Appellant was evaluated this time by Captain (CAPT) Ho, a Navy
psychiatrist, who concluded that at the time of the offenses, Appellant
suffered from a severe mental disease, i.e., bipolar disorder. CAPT Ho, however, concluded that Appellant
“was able to appreciate the nature and quality or wrongfulness of his
conduct.” On
During review in the court below, Appellant raised several issues. But he did not raise the issue of a new trial in light of newly discovered evidence. Rather, he argued that his sentence was inappropriately severe in light of his mental health. As a result, he requested that the court order a rehearing on sentence or reassess the sentence in light of post-trial developments. The lower court subsequently affirmed the findings and sentence without discussion, noting only that the issues raised by Appellant were without merit.
Appellant subsequently filed a petition for review before this Court as well as a separate petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873 (2000), based on newly discovered evidence of lack of mental responsibility. In his supplement to the petition for grant of review Appellant assigned two issues, one of which asserted that he deserved a new trial because he suffered from a severe mental disease at the time of the offenses.4
DISCUSSION
A.
The Petition for New Trial
Petitions
for new
trials are disfavored in the law; relief is granted only to avoid a
“manifest
injustice.”
(A) The evidence was
discovered after the trial;
(B) The evidence
is not such that it would have been discovered by the petitioner at the
time of
trial in the exercise of due diligence; and
(C) The newly
discovered evidence, if considered by a court-martial in the light of
all other
pertinent evidence, would probably produce a substantially more
favorable
result for the accused.
In this case, the parties agree that the evidence of Appellant’s mental illness was discovered after trial. However, the parties do not agree as to whether Appellant exercised due diligence in discovering the evidence prior to trial.
The
Government
argues that Appellant failed to disclose pertinent information to MAJ
Pfeiffer,
who conducted the pretrial sanity board, namely Appellant’s prior
psychological
counseling, disclosed by Appellant’s father at the post-trial session,
and
evidence of the mental health issues of Appellant’s parents. According to the Government, had Appellant
been forthcoming, his true mental state would have been discovered
prior to
trial. However, this argument assumes
that a person with a severe mental defect will have the savvy to know
what
information the trained mental health professional needs to evaluate
him as
well as the wherewithal to consciously choose to withhold such
information. Moreover, previously, this
Court has applied
the due diligence standard in the rule to the efforts of defense
counsel.
We
turn now to the third prong of analysis.
In context, the question is whether LT LaCroix’s diagnosis and
the
testimony at the Article 39(a) session would have had an impact on the
trial
result. However, the parties disagree on
the applicable substantive measure.5
The
Government
avers that the standard is stated clearly in the rule, which provides
that a
new trial shall not be ordered unless “the newly discovered evidence,
if
considered by a court-martial in the light of all other pertinent
evidence,
would probably produce a substantially more
favorable
result for the accused.”
R.C.M. 1210(f)(2)(C).
Appellant’s contrasting argument is
that a new trial must be granted where the request is
based upon
post-trial discovery of a severe mental disorder unless “the court
is
convinced beyond a reasonable doubt that a different result would not
occur
had the court been aware of the new evidence.”
Emphasis added. Appellant argues
that this standard pertains whether he is before this Court on direct
appeal
pursuant to Article 67, or whether he is petitioning this Court under
Article
73. Appellant further argues that “[h]istorically. . . we have given preferential
treatment to
the question of mental responsibility of a military member, even though
the
matter was not litigated at trial.”
This
reasonable
doubt standard has its genesis in United States v. Triplett, 21
C.M.A.
497 (1972). Triplett was convicted at a
trial before a military judge of the murder of a fellow soldier. At trial, the parties litigated the accused’s
mental responsibility at the time of the killing. A
psychiatrist, who examined the accused
prior to trial testified that in his opinion the accused was suffering
from a
psychotic episode at the time of the offense that was self-induced by
the
accused’s voluntary drug use. Finding
the accused mentally responsible beyond a reasonable doubt, the
military judge
found the accused guilty as charged.
Relying
on
paragraph 124 of the 1969 revised edition of the Manual for
Courts-Martial
(MCM),6 the
lower court held after reviewing the
record as a whole “that no reasonable doubt exists as to the sanity of
the
accused.” Triplett,
21 C.M.A. at 502. Affirming the
Court of
Military Review, this Court construed the language and purpose of
paragraph
124, and stated, “If on the record, as a whole, the tribunal concludes
‘that a
reasonable doubt exists as to the sanity of the accused,’ it should set
aside
the findings of guilty and dismiss the charge.”
However, as in Triplett, these cases arose in the context of appeals taken from decisions by the lower courts on the issue of later-discovered evidence of a lack of mental responsibility. As a result, the trial court or courts of criminal appeals were required to apply a beyond a reasonable doubt standard with respect to guilt. Because an accused now has the burden of demonstrating lack of mental responsibility by clear and convincing evidence, this results in what is an admittedly convoluted appellate standard of review as set out in United States v. Cosner:
Is the appellate court convinced beyond a reasonable doubt that reasonable fact finders would not find by clear and convincing evidence that, at the time of the offense, appellant suffered from “a severe mental disease or defect” such as to be “unable to appreciate the nature and quality or the wrongfulness of” his acts?
35 M.J. 278, 281 (C.M.A. 1992)(citations and emphasis omitted).
For the fact-finder, such a demonstration would amount to a reasonable doubt as to guilt.
In addition, Triplett rested on language in paragraph 124 of the 1969 MCM,10 which expressly included the “beyond a reasonable doubt” standard. Paragraph 124 was not included in the 1984 MCM; however, the Triplett standard continues in case law. The Court’s discussion in Triplett suggests why:
21
C.M.A. at 502 (emphasis added). This
language contemplates a weighing
function carried out by the authorities empowered to do so. This was borne out later in paragraph 124,
which
stated that if it is determined that the accused lacks mental capacity,
“a
conviction may not be approved or affirmed under Articles 64, 65, or
66.”11 MCM,
¶124 (1969 revised ed.)
Neither paragraph 124 nor the
In
light of the service courts’ fact-finding function, the standard
articulated in
Triplett, Dock, Van Tassel, and Cosner
continues as
the appropriate standard for lower courts considering the impact of
newly
discovered evidence regarding mental responsibility.
In contrast, this Court applies the separate
standard set forth in R.C.M. 1210(f)(2)(C)
in
reviewing requests for new trials on the ground of mental
responsibility. The rule sets out the
standard in plain text,
and there is no ambiguity or anything in the rule that suggests a
reasonable
doubt standard. Moreover, unlike the
lower courts, because we have no fact-finding authority, we are
prohibited from
weighing evidence in the manner suggested in Cosner and Triplett.
This
conclusion
is consistent with United States v. Murphy, 50
M.J. 4
(C.A.A.F. 1998). While Murphy’s case was
pending before the Court of Military Review, he obtained funding from
the Judge
Advocate General to employ the services of a social history
investigator. However, the court completed
its review of
his case before the investigation could be completed.
B. Application
Turning to Appellant’s case, we note that he has filed within the statutory period under Article 73. Unlike the situation in Murphy, we also have before us the record of the post-trial Article 39(a) session where the testimony of the two mental health professionals was tested in the “crucible of examination.” Triplett, 21 C.M.A. at 503.
The question becomes whether the post-trial evidence in Appellant’s case “would probably produce a substantially more favorable result for the accused.” R.C.M. 1210(f)(2)(C). Or, alternatively, is it necessary to remand for further analysis under the reasonable doubt standard applied by the Courts of Criminal Appeals? At this point, three Government mental health professionals have offered varying conclusions as to Appellant’s mental responsibility at the time of the offenses. Only one of these evaluations was specifically sought by Appellant. MAJ Pfeiffer concluded that Appellant suffered no severe mental defect or disease. In contrast, LT LaCroix concluded that he did suffer a severe disease at the time of the offenses and that he was “not able to control his actions or appreciate the wrongfulness of his conduct due to psychiatric symptoms.” CAPT Ho concluded that Appellant suffered from a severe mental disease or defect, but he was able to appreciate the nature and quality or wrongfulness of his conduct.
As a threshold, we note that Appellant’s defense was immediately impacted by the newly discovered evidence, because defense counsel was unable to prepare and fully develop the affirmative defense of mental responsibility prior to trial because she had no evidence that Appellant suffered from a severe mental defect or disease. More importantly, the distinctions in background and methodology used by the doctors in reaching contradictory conclusions, raises the possibility that a different court-martial might reach a finding more favorable to the Appellant. For example, MAJ Pfeiffer was a clinical psychologist and LT LaCroix a medical doctor. LT LaCroix had experience with “hundreds” of patients diagnosed with bipolar disorders. In addition, LT LaCroix met with Appellant “one to two times a month” for the four months between her initial intake evaluation of him and the date of the post-trial Article 39(a) session. MAJ Pfeiffer spent several hours with Appellant during one visit. Moreover, the military judge was persuaded by LT LaCroix’s testimony that Appellant suffered a severe mental disease at the time of the offenses.
Of course, “the mere existence of conflicting opinion does not necessarily require a rehearing.” Triplett, 21 C.M.A. at 503. However, this case presents more than conflicting opinions. LT LaCroix testified in detail not only as to her qualifications, which were different than those of MAJ Pfeiffer, but also as to her methodology in obtaining needed information from Appellant. We also note the absence of any “forum shopping” by Appellant for a more favorable opinion than MAJ Pfeiffer’s. CAPT Ho’s examination was ordered by the convening authority, and LT LaCroix testified that Appellant had not initially sought her out for treatment. In fact, she stated that Appellant was not even aware that he was being sent to a psychiatrist.
In any event, the question for this Court is not whether MAJ Pfeiffer, LT LaCroix, or CAPT Ho reached the correct conclusion, but whether a different court-martial might have reached a result more favorable to the accused in light of arguments defense counsel might have brought to bear with knowledge of Appellant’s condition as well as the differences in the testimony of the doctors. In light of the newly discovered evidence regarding Appellant’s mental illness, the competing views as to its impact on responsibility, and all other pertinent evidence, we conclude this evidence would probably produce a substantially more favorable result for Appellant on the contested offenses. We now address the offenses to which Appellant pleaded guilty.
C. Appellant’s Guilty Pleas
Appellant was charged with larceny, but entered a plea of guilty to the lesser offense of wrongful appropriation. He also pleaded guilty to three specifications of writing bad checks with intent to defraud. Appellant now urges that we apply the new-trial construct of Article 73 and R.C.M. 1210(f) to decide whether Appellant’s pleas were provident. Because R.C.M. 1210 expressly precludes its application to guilty pleas, we decline to do so.12
A
guilty plea
will be rejected only where the record of trial shows a substantial
basis in
law and fact for questioning the plea.
A
plea of guilty
waives a number of important constitutional
rights.
DECISION
The decision of the United States Air Force Court of Criminal Appeals is set aside, along with the findings and sentence. Appellant’s petition for new trial is granted.14 The record of trial is returned to the Judge Advocate General of the Air Force for action consistent with this opinion.
1 Although Appellant’s plea to
wrongful appropriation was accepted by the military judge, the
Government
proceeded on the greater offense and Appellant was ultimately convicted
of
larceny.
2 Earlier, on or
about
3 The parties do not
agree on whether the convening authority’s action was limited to having
the
military judge reconsider the accused’s guilty pleas, or whether this
action is
also appropriately cast as an inquiry into the necessity for a new
trial under
R.C.M. 1210, in light of the “newly discovered” evidence of Appellant’s
illness. We need not resolve this
dispute, as we have before us Appellant’s petition for a new trial,
which we
review de novo. However, the evidence
considered at the post-trial session is, of course, relevant to our
analysis.
4 The issue
granted on Appellant’s
petition for review is:
WHETHER APPELLANT SHOULD BE GRANTED
A NEW TRIAL BECAUSE HE SUFFERED FROM A SEVERE MENTAL DISEASE AT THE
TIME OF HIS
OFFENSES THAT RENDERED HIM UNABLE TO APPRECIATE THE NATURE AND QUALITY
OR THE
WRONFULNESS OF HIS ACTIONS.
As
noted, on
5 Identification of
the correct substantive standard before this Court is complicated
because the
parties’ arguments are addressed to both Appellant’s petition for
direct review
under Article 67, UCMJ, 10 U.S.C. § 867 (2000), and his petition for
new trial
under Article 73. However, for the
reasons stated below, in either appellate context we reach the same
conclusion
applying R.C.M. 1210(f).
6 Paragraph 124
states: ACTION BY CONVENING OR HIGHER
AUTHORITY. After consideration of the
record as a whole,
if it appears to the convening authority or appropriate higher
authority that a
reasonable doubt exists as to the sanity of the accused, the
findings of
guilty affected by that doubt should be disapproved . . . .” MCM (1969 revised ed.), ¶124 (emphasis
added).
7 “Is the
appellate court convinced
beyond a reasonable doubt that a different result would not obtain if
the trier
of fact had this new evidence before it?”
28 M.J. at 120.
8 “The standard
to be applied by a Court
of Military Review to determine ‘whether the issue of insanity was
adequately raised . . . post-trial’ is whether ‘the appellate court
[is]
convinced beyond a reasonable doubt that a different result would not
obtain if
the trier of fact had this new evidence before it[.]”
38 M.J. at 95 (quoting Dock, 28 M.J.
at 119-20) (emphasis added).
9 “Whether the fact
finder, after considering all the evidence that would be available,
might have
a reasonable doubt as to appellant’s mental responsibility?” 25
M.J. at 408.
11 These
provisions reference
respectively the post-trial responsibilities of the convening
authority, the
judge advocates general, and the courts of military review.
12 “A petition
for a new trial of the
facts may not be submitted on the basis of newly discovered evidence
when the
petitioner was found guilty of the relevant offense pursuant to a
guilty
plea.” R.C.M. 1210(a).
13 At this juncture the
military judge had two options. He could
have inquired whether Appellant
still wished to plead guilty, now aware of a possible affirmative
defense based
on mental illness. Alternatively, the
military judge could have advised the convening authority that a
substantial
basis in law and fact now existed to question whether Appellant’s pleas
were
provident.
14 Our
resolution of Appellant’s
Petition for New Trial renders the granted issue moot because the same
standard
articulated in our opinion to resolve the petition for new trial
applies as
well to the issue when presented to us for the first time on direct
review.
CRAWFORD, Judge (dissenting):
Lack of mental responsibility can be a valid defense in only one situation, when:
at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.
R.C.M. 916(k)(1).
If
Appellant appreciated the “nature and quality or the wrongfulness” of
his
actions, he does not qualify for this defense.
During his providence inquiry, Appellant explained several times
that he
understood that he had insufficient funds when he stole the truck and
wrote the
bad checks. His father’s testimony
during the Article 39(a) session also suggested a motive: emulation of his relatively wealthy brother.
The
accused is
always presumed to have been mentally responsible and bears the burden
of
proving, “by clear and convincing evidence, that he or she was not
mentally
responsible at the time of the alleged offense.”1 R.C.M. 916(k)(3)(A). Even if an accused can prove that he lacked
mental responsibility over a long period of time that included the day
of the
offense, the prosecution can rebut this by proving that the accused was
mentally responsible at a specific time during that period –- for
example,
while signing checks.
The providency hearing made clear the intent behind Appellant’s offense involving the truck:
ACC: Your Honor, I was counting on the deal not going through. I thought that the vehicle was too much and that the loan wouldn’t get approved. I believed I was going to have to turn it back in at the end of the week.
MJ: All right. You said you planned for the deal not to go through . . . . [and] you wrote them some checks that you knew weren’t going to go through?
ACC: Yes, Your Honor . . .
MJ: [Y]ou knew at that point that you didn’t have the money in the bank, so you were defrauding them. Is that right?
ACC: Yes, Your Honor . . .
. . . .
MJ: And as a result, you were taking [the truck] for your own personal use, you said “to show off”?
ACC: Correct, Your Honor.
After Appellant changed his plea on the desertion charge to not guilty, the military judge returned to the issue of intent during discussion of the uttering specifications. When the judge asked him why he believed himself guilty of Specification 1, Appellant replied:
When I made the check I knew that I, the maker thereof, did not or would not have sufficient funds in the bank for the payment of the check in full . . . .
MJ: You made this check for $1,090.39. Did you know at the time you didn’t have that money in the bank?
ACC: Yes, Your Honor . . . .
. . . .
MJ: You read off the intent to defraud, and I defined that earlier for you. Basically, obtaining items through misrepresentation and intending to use those items for the use and benefit of yourself or the use and benefit of someone else. Is that what you did when you presented this check?
ACC: Yes, Your Honor.
Appellant’s accounts of the remaining specifications were similar. He admitted that the making of all three of the bad checks in the additional charge was “wrongful, unlawful, and with intent to defraud.”
Appellant’s father, John Cochran Harris, disclosed a possible motive during his testimony for the defense. After recounting Appellant’s history of problems with depression, low self-esteem, and lack of discipline, Mr. Harris went on to describe Appellant’s relationship with his older brother:
A: His brother has been very successful. He was an average student in high school. But then upon graduating from high school he went to ITT Technical Institute and . . . built his way up into some respectable earning positions with some companies. Even to the point where he was earning enough that he purchased a small private plane to learn how to fly . . . . So, that was very impressionable [sic] I know to John the fact that his brother was earning good money, and had a plane, and had a family, and was moving ahead. Even to the point now that my oldest son did get his private license; and has now sold that plane; and has gone back to college full time at Indiana State University and enrolled in the professional pilot program . . . .
Q: Do you think that Airman Harris looks up to his older brother?
A: Completely . . . . And there’s one thing about Chris, my oldest son, was material things. He liked . . . nice things; a good car; but he was making the money that he could handle those things. I know John was kind of caught up into that materialistic image that his brother kind of projected and wanted to be like him in that respect.
Q: And do you think that was part of the reason why he did the things that he did in this case?
A: I really think it is.
The testimony of Appellant and his father does not suggest a man who was “unable to appreciate the nature and quality or the wrongfulness of his . . . acts,” as required for a valid defense under R.C.M. 916(k)(1). Instead, it suggests a man who was mentally ill but nevertheless had a motive, a plan, and the ability to commit several crimes. Despite any mental illness, Appellant was lucid enough to form the necessary criminal intent. Thus, the defense of lack of mental responsibility is unavailable to him.
If
lack of mental responsibility is a heavy burden for an appellant, a
petition for
a new trial is even heavier. This Court
generally disfavors such petitions and will grant one “only if a
manifest
injustice would result absent a new trial . . . based on proffered
newly
discovered evidence.”
The standard for these petitions is laid out in R.C.M. 1210(f), which permits only two grounds for new trials: newly discovered evidence and fraud on the court-martial. Appellant petitions on the basis of newly discovered evidence, which requires him to show all of the following:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and
(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.
R.C.M. 1210(f)(2).
This
Court tends
to frown on post-trial second opinions by mental-health experts; it is
reluctant to grant an appellant a new trial solely because his search
for
additional experts has yielded more favorable results.
In United States v. Gray, 51 M.J. 1,
14 (C.A.A.F. 1999), this Court held that “the establishment of
conflicting
expert opinion on an accused’s mental state does not necessarily
require a
rehearing.” The
This case illustrates the problem with post-trial second opinions. After his providency hearing, in which he had admitted his intent to steal the truck and pass the bad checks, Appellant sought the help of a psychiatrist. That doctor, Lieutenant Camille LaCroix, examined him and concluded that he suffered from Bipolar Disorder Type I. In contrast to the deliberate action he had described in his providency hearing, she later testified that:
[h]e said he had no intention of buying a truck; he has no idea why that happened. He knows it did happen because he did do that and he had written these checks and everything else, but he had no preconceived notion of going to do these things.
She added, in response to defense counsel’s question, that the fact that Defendant had spent several days at the car dealership before stealing the car was irrelevant; that period could have been merely a build-up to the irresistible impulse that is characteristic of this disorder. She also noted that people with bipolar disorder cannot appreciate the wrongfulness of their actions at the time of an offense. Her conclusion thus became key to Appellant’s defense, even though it contradicted his own testimony.
Even if we ignore our policy against expert-shopping, Appellant’s case fails on another point: He would have discovered his evidence before trial, had he exercised due diligence. Appellant himself had struggled with mental illness as a teenager and had received medication and extensive counseling. He easily could have discovered his family history of mental illness, including his mother’s history of bipolar disorder. Due diligence by the defense also would have brought to light the evidence from Senior Master Sergeant Marilyn Toland and Captain William Cannon, who witnessed his peculiar behavior during pretrial confinement. Appellant did not discover any of this available evidence before trial. He thus is disqualified from consideration for a new trial on the basis of R.C.M. 1210(f)(2)(B) and our own precedent. Gray, 51 M.J. 1 at 14.
I have no doubt that bipolar disorder has thrown Appellant’s life into repeated turmoil, and I underestimate neither his struggle nor the pain it has brought his family. However, we are asked to judge his actions against the fixed standards set by Congress. Appellant was able to appreciate the wrongfulness of his acts at the time he committed them. Therefore, the lack of mental responsibility cannot be a valid defense for him. Moreover, he failed to exercise due diligence in pretrial discovery. Therefore, his petition for a new trial fails to meet the statutory requirements. Accordingly, I respectfully dissent.
1
“Clear and
convincing evidence is that weight of proof which produces in the mind
of the
factfinder a firm belief or conviction that the allegations in question
are
true.” United
States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001) (internal
quotation marks
and citations omitted), quoted in