IN THE CASE OF
UNITED STATES, Appellee
Michael J. SONEGO, Airman
Crim. App. No. S30216
ERDMANN, J., delivered the opinion of the Court, in which GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., filed a dissenting opinion.
For Appellant: Major Sandra K. Whittington (argued); Lieutenant Colonel Carlos L. McDade, Major Antony B. Kolenc, Major Terry L. McElyea, and Captain L. Martin Powell (on brief).
For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer (on brief); Major Shannon J. Kennedy.
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Michael Sonego entered a plea of guilty to wrongful use of ecstasy in
of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
(2000). He was sentenced by members to a bad-conduct discharge,
restriction to the limits of Lackland Air Force Base for two months,
of $500 pay per month for twelve months, and a reduction in grade to
The convening authority approved only the bad-conduct discharge and
forfeitures. The findings and the approved sentence were affirmed
United States Air Force Court of Criminal Appeals in an unpublished
Sonego’s trial, his defense counsel discovered that one of the panel
may have failed to answer a question honestly during voir dire.
is critical to the fairness of a court-martial.
Sonego was accused of taking two ecstasy pills on two consecutive days in January 2002. When questioned by investigators, he immediately confessed to his misconduct. At trial Sonego pleaded guilty and was sentenced by a panel of three officer members.
the military judge asked the standard voir dire questions found in the
Judges’ Benchbook. Legal Services, Dep’t of
Pamphlet 27-9, Military Judges’ Benchbook ch. 2, § V, para.
It is a ground for challenge if you have an inelastic predisposition toward the imposition of a particular punishment based solely on the nature of the crime for which the accused is to be sentenced. Does any member, having read the charge and specification[,] believe that you would be compelled to vote for any particular punishment solely because of the nature of the charge?
See id. Captain Bell, who was a potential member, answered “no” and was subsequently seated on the panel. He was not called for individual voir dire.
deliberations the members sent a note to the military judge asking if
were any discharge options available other than a bad-conduct
The military judge called the members in and explained that the only
option available to the court was a bad-conduct discharge. When
military judge asked if there were any further questions,
month after the trial, Sonego’s trial defense counsel, Captain Page,
representing another airman in a drug case when
made in the second case because it resulted in an acquittal, but Page
drafted a sworn declaration in which he recounted
Sonego argues that
response was that Sonego is not entitled to a new sentence hearing or
evidentiary hearing because he has not established that
In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984), the United States Supreme Court set out the test for determining when a party is entitled to a new trial due to an incorrect voir dire response: “[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” We adopted this test in Mack, and held that “where a party asserts juror nondisclosure during voir dire as a ground for a new trial, the normal procedure is to remand the issue to the trial court for resolution.” 41 M.J. at 55. In United States v. Humpherys, we reiterated, “[A]n evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding each of [the Mack/McDonough] inquiries.” 57 M.J. 83, 96 (C.A.A.F. 2002). We did not order an evidentiary hearing in Humpherys, however, because the military judge had already conducted a post-trial session under Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), after which he applied the McDonough test. 57 M.J. at 95.
evidentiary hearing is the usual procedure for resolving claims of
dishonesty, we have not had the occasion to address the measure of
required to trigger an evidentiary hearing. The measure of proof
to trigger a McDonough evidentiary hearing is a question where
federal circuits have differed. Of the eight circuits that have
this issue, six have adopted a standard that requires something less
of juror dishonesty before a hearing is convened. See United
States v. Carpa, 271 F.3d 962, 967 (11th Cir. 2001); Pope v.
Inc., 209 F.3d 1161, 1163 (9th CirHu.
While some of the circuits have declined to establish a particular test, choosing instead to leave the decision within the broad discretion of the deciding court, the Ninth Circuit has held that “‘[a] court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances.’” Pope, 209 F.3d at 1163 (quoting Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998)). The First Circuit has also adopted the “colorable claim” rule. See Boylan, 898 F.2d at 258. The Eighth Circuit has held that “a movant who makes a sufficient showing of McDonough-type irregularities is entitled to the court’s help in getting to the bottom of the matter.” Tucker, 137 F.3d at 1026.2
The standard urged by the Government -– a prima facie showing -- would swallow the first prong of the McDonough test. It is unreasonable to expect an appellant to produce prima facie proof of juror dishonesty without the benefit of an evidentiary hearing or other fact-finding procedure where the evidence may be fully developed. We conclude that the “colorable claim” test used by the First and Ninth Circuits provides the better test because it eliminates frivolous claims but keeps the door open for claims that may prove valid upon further examination. This Court has adopted the “colorable claim” test in other contexts. See, e.g., United States v. Taylor, 60 M.J. 190, 195 (C.A.A.F. 2004) (prejudice due to post-trial error); United States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002) (appellate discovery); United States v. Douglas, 56 M.J. 168, 170 (C.A.A.F. 2001) (violation of rights under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982)); United States v. Diaz-Duprey, 51 M.J. 168 (C.A.A.F. 1999) (ineffective assistance of counsel).
Here, Sonego has made a colorable claim
dishonesty. His attorney, an officer of the court, has declared
penalty of perjury that a panel member provided a contradictory voir
response on a critical issue less than one month after Sonego’s trial.3 The Government argues
that this proof
falls short because Sonego has not and cannot establish what
Thus, the Air Force court erred by failing to order an evidentiary hearing in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for submission to the convening authority to order a hearing to resolve questions of fact and make conclusions of law with respect to whether the McDonough test for a new trial due to juror nondisclosure during voir dire has been met. Upon completion of these proceedings, the record, along with the military judge’s findings of fact and conclusions of law, shall be returned to the convening authority for further consideration and action, to include setting aside the original action and ordering a new sentence hearing, if appropriate.
In the event that the convening authority deems such a hearing impracticable, the convening authority shall set aside the action and either order a rehearing on the sentence or take action approving a sentence of no punishment.
Upon completion of proceedings below, the record of trial shall be sent directly to the Air Force Court of Criminal Appeals for review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.
1 We granted review of the following issue:
WHETHER APPELLANT IS ENTITLED TO AN IMPARTIAL SENTENCE REHEARING WHERE, DURING VOIR DIRE, A PANEL MEMBER FAILED TO DISCLOSE HIS BELIEF THAT EVERY SERVICEMEMBER WHO USES DRUGS SHOULD GET A PUNITIVE DISCHARGE.
2 Unlike the First, Eighth, Ninth, Tenth, Eleventh and District of Columbia Circuits, the Second Circuit has held that a post-trial hearing is only necessary if the party requesting the hearing can produce “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.” United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) (citation omitted). The Fifth Circuit requires that the movant establish a prima facie case under McDonough before an evidentiary hearing is required. Montoya v. Scott, 65 F.3d 405, 420 (5th Cir. 1995).
CRAWFORD, Judge (dissenting):
I am unwilling to
abandon precedent and arbitrarily reassign appellate burdens, I cannot
majority in rewarding Appellant for what I view as the certainly
-– and potentially “sharp” -– practice of defense counsel in both the
and substance of this issue. Viewed from any angle, Appellant has
to meet his burden in two regards: he has not acted in a timely
and he has not “demonstrate[d] that a [panel
failed to answer honestly a material question on voir dire.”
McDonough Power Equipment, Inc. v.
In United States v. Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002), this Court examined, for abuse of discretion, a military judge’s denial of a motion for new trial based on a material misstatement by a court member during voir dire involving the denial of a rating-chain relationship. Applying the test prescribed by the United States Supreme Court, we held in Humpherys that:
[w]hen a panel member fails to disclose information during voir dire, the defendant must make two showings in order to receive a new trial. “‘[A] party must first demonstrate that a [panel member] failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.’ McDonough Power Equipment, Inc. v.
57 M.J. at 96 (citation omitted).
Unlike Appellant’s case, in Humpherys the material misstatement was one of fact, as opposed to opinion, and was brought to the military judge’s attention soon after its discovery. Emphasizing the importance of timely action by counsel, this Court explained the benefits that timeliness offers the truth-finding process:
The post-trial process empowers the military judge to investigate and resolve allegations, such as those in this case, by interviewing the challenged panel members. It allows the judge to accomplish this task while the details of trial are still fresh in the minds of all participants. The judge is able to assess first-hand the demeanor of the panel members as they respond to questioning from the bench and counsel. Our role in the process is to review the results and ensure the military judge has not abused his or her discretion in reaching the findings and conclusions.
requesting a new sentence hearing, or in the alternative a post-trial
evidentiary hearing, Appellant asserts that during voir dire at
court-martial, a panel member -- Captain (Capt)
Unlike the factual incongruity in Humpherys, susceptible of proof by resort to a verbatim record and a published rating chain or a completed evaluation report,1 the misrepresentation Appellant claims is one of personal opinion or belief, allegedly stated in materially different terms, separated by approximately three weeks. Also unlike Humpherys, where the military judge, after being given dispositive evidence of material misstatements made during voir dire, convened a post-trial session to inquire into the circumstances and effect of those misstatements, the military judge in this case was given no such opportunity. Instead, years later, we are asked to order a DuBay hearing on the basis of a counsel’s uncorroborated suggestion, in a carefully crafted declaration, that there may have been a material misstatement of opinion by a court member.
We have before us Appellant’s record of trial, in which Capt Bell is credited with a negative response to the question of inelastic predisposition; however, we have no evidence of Capt Bell’s answers at the subsequent trial of another airman, only the declaration of Capt Page, the detailed defense counsel in both proceedings, which loosely summarizes Capt Page’s impression of Capt Bell’s responses at that later proceeding. There is no statement from Capt Bell, and no transcript or tape recordings from the subsequent trial in which Capt Bell gave the allegedly contradictory response(s). There is no statement from anyone else present in the courtroom at those later proceedings, e.g., the civilian defense counsel, the court reporter, or the military judge. There is no evidence that Capt Page or the appellate defense counsel sought production of a partial transcript, or even the tapes, of that later proceeding. There is no evidence that Capt Page moved for a post-trial session or new trial under either Rule for Court Martial (R.C.M.) 1102 or R.C.M. 1210, respectively, despite the fact that the voir dire sessions were only about three weeks apart. Further, Capt Page did not bring this matter to the convening authority’s attention in his R.C.M. 1105 matters. Compounding this evidentiary vacuum -– even if we were to assume that Capt Bell’s responses to questions on inelastic predisposition were materially different at the later proceeding -- is that we are faced not with a failure to disclose a material matter of fact, but with a potential difference of opinion and, more importantly, with the question of when, if ever, Capt Bell’s opinion on the matter changed.
The declaration of Appellant’s trial defense counsel, signed ten months after that later proceeding, and nearly a year after our Humpherys decision, contains a rough account of Capt Bell’s voir dire responses at the second trial. Neither the defense counsel nor the appellate defense counsel claim the account was contemporaneously recorded, and neither offers any reason why, immediately following that second proceeding, with Appellant’s conviction and Capt Bell’s voir dire at Appellant’s trial fresh in his mind, Appellant’s defense counsel apparently did nothing. Now, however, wielding his defense counsel’s “officer of the court” status, Appellant asks this Court to order what his defense counsel could, and clearly should, have sought themselves while facts and memories were fresh, had they harbored any genuine belief in the merit of this issue.
Viewed benignly, the course chosen by the defense may reflect earnest, zealous representation, flavored with a bit of Steve Martin’s famous catchphrase, “I forgot.” It would not be untoward under the circumstances, however, to ask whether the defense intentionally delayed raising the issue until memories had dimmed, command interest had waned, and the cost and inconvenience of a DuBay hearing outweighed any perceived benefit to the Government. Be that as it may, when this Court, without requiring any explanation, embraces and rewards this practice, we ensure its emulation by subsequent appellants.
By conferring evidentiary status on the defense counsel’s unsupported, untimely, and conclusory declaration, the majority exalts his “officer of the court” status, while impugning the integrity of Capt Bell, who now, presumably, will be dragged into court to defend his honor against Appellant’s accusation that he lied under oath. It does not speak well of this Court to assign opprobrium to Capt Bell with so little cause. Not only would I follow Article 67, UCMJ, 10 U.S.C. § 867 (2000), in declining to find facts from Capt Page’s declaration, but, as a predicate to impeaching Capt Bell, I would require a satisfactory demonstration from appellate defense counsel of Capt Page’s efforts to: procure a verbatim transcript of the later voir dire; procure the tapes from which to make such a transcript; offer the statement of any other observer or participant in the courtroom; make a contemporaneous record of Capt Bell’s responses; or seek a post-trial session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), from the military judge or the convening authority. In short, I would require Appellant to meet the burden established by our precedent, consistent with the weight of federal case law.
In that regard, I cannot agree that Humphreys, Mack, and the bulk of the federal circuits support the remedy awarded to Appellant by the majority opinion. Every case cited by the majority (except United States v. Boylan, 898 F.2d 230 (1st Cir. 1990), which examined the effect of extraneous information in the jury room) deals with questions of fact, susceptible of proof by resort to recorded testimony, court records, and other documentary evidence. Moreover, each of those cases examines a claim of juror misconduct raised either during trial or expeditiously thereafter -– none addresses a delay of ten months from the time counsel learned of the potential misconduct to the time he raised that issue (notwithstanding numerous intervening opportunities to do just that). Even in the fact-based instances addressed by those decisions, none of the cases cited by the majority advances the proposition that an appellant is entitled to an evidentiary hearing pursuant to a mere claim of potential bias by a juror. In holding that the trial judge did not err in declining to hold such a hearing, the First Circuit said, “When a colorable claim of jury misconduct surfaces, the district court has broad discretion to determine the type of investigation which must be mounted. The trial judge may, but need not, convene a fullblown evidentiary hearing.” Boylan, 898 F.2d at 258 (internal citations omitted).
In denying Appellant’s request for an evidentiary hearing, I would apply the sound framework applied by the Eighth and Eleventh Circuits:
[“]Examination of all of the cited authorities . . . leads us to the conclusion that the cases fall along a continuum focusing on two factors. At one end of the spectrum the cases focus on the certainty that some impropriety has occurred. The more speculative or unsubstantiated the allegation of misconduct, the less the burden to investigate . . . . At the other end of the continuum lies the seriousness of the accusation. The more serious the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.[”]
In sum, the depth of investigation required depends on both the gravity of the alleged misconduct and the substantiality of the movant's showing of misconduct.
United States v. Tucker, 137 F.3d 1016, 1031 (8th Cir. 1998)(quoting
It is precisely the “substantiality of the movant’s showing of misconduct” that we must question before we direct any remedy, even a fact-finding Article 39(a) session. To do otherwise is to establish that, despite circumstances suggesting intentional delay by Appellant and his counsel and, even when raised for the first time on appeal by affidavit alone, a conclusory suggestion of member misconduct is sufficient not only to shift to the Government the burden of proving that the suggestion is false, but to require the Government to conduct -– at the least -– a costly and time-consuming DuBay hearing.
Rather than bestow this new and undeserved remedy, I would invite defense counsel to fulfill their obligations as “officers of the court,” and share with this tribunal the evidence that supports their arguments, or, in its absence, evidence of their due diligence in attempting to procure it. At the very least, I would require the military judge, as a predicate to further fact-finding, to find that Capt Page made good faith efforts to procure the record at the time.
1 In Mack, which we cited in Humpherys, the question before us was also one of fact, proved on appeal by resort to two authenticated records of trial by court-martial.