IN THE CASE OF
UNITED STATES, Appellee
v.
Wayne G. AUGSPURGER, Airman Basic
No. 04-0563
Crim. App. No. S30222
Argued
Decided
ERDMANN, J., delivered the opinion of the court, in which GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., filed a separate opinion, dissenting in part and concurring in the result.
Counsel
For Appellant: Major Andrew S. Williams (argued); Lieutenant Colonel Carlos L. McDade and Major Terry L. McElyea (on brief).
For Appellee: Major Michelle M. Lindo (argued); Colonel LeEllen Coacher, Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, Major James K. Floyd, and Major M. Leeann Summer (on brief).
Military Judge: Ann D. Shane
This opinion is subject to
revision before final publication.
Judge ERDMANN delivered the opinion of the court.
Airman
Basic (AB) Wayne G. Augspurger was charged with wrongfully using
marijuana “on
divers occasions,” wrongfully distributing marijuana, being drunk and
disorderly and wrongfully communicating a threat in violation of
Articles 112a
and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 934 (2000),
respectively. He pleaded guilty to the
drunk and disorderly specification and not guilty to the remaining
specifications. The members found him not
guilty of wrongfully
distributing marijuana and wrongfully communicating a threat. He was found guilty of wrongfully using
marijuana, except for the words “on divers
occasions.” Augspurger was sentenced to
confinement for
three months and a bad-conduct discharge.
The convening authority approved the sentence and the Air Force
Court of
Criminal Appeals affirmed the findings and sentence by unpublished
order on
When a servicemember is charged with illegal conduct “on divers occasions” and the members find the accused guilty of charged conduct but strike out the “on divers occasions” language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions. Where the findings do not disclose the single occasion on which the conviction is based, the Court of Criminal Appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was convicted of and which occasion the servicemember was acquitted of. We granted review in this case to determine whether the Air Force court erred in reviewing the findings for factual sufficiency and independently determining which act of marijuana use Augspurger was convicted of. We hold that the Air Force Court of Criminal Appeals erred. That court could not conduct a factual sufficiency review of Augspurger’s conviction because the military judge failed to clarify the factual bases upon which the members’ findings of guilty and not guilty were based.
BACKGROUND
At Augspurger’s
court-martial the Government presented evidence of three separate
occasions during
which Augspurger allegedly used marijuana.
The allegation of one occasion of use was based on a positive
urinalysis
result after Augspurger’s urine was tested for marijuana when he
submitted a
sample for a medical test. Following
this positive test Augspurger admitted to an investigator that he had
smoked
marijuana at an off-base apartment with some friends on
The “use” specification alleged that
Augspurger had used marijuana “on divers occasions” between
Confusion over which occurrence
Augspurger had been convicted of was evident following the announcement
of the
verdict. In a session pursuant to
Article 39(a), UCMJ, 10 U.S.C. § 839 (a) (2000), the defense counsel
asked the
military judge to have the members clarify the findings.
The military judge declined to do so but did
discuss her concern over how she should instruct the members regarding
Augspurger’s prior nonjudicial punishment under Article 15, UCMJ, 10
U.S.C. §
815 (2000), for the drug use described in his confession.
She noted that “at this point, we don’t even
know if that’s one of the specifications.”
The military judge ultimately decided to conditionally instruct
the
members that they could consider the Article 15 punishment as evidence
in
mitigation if they had convicted him for the same drug use. The trial counsel objected to that
instruction noting that “[t]here is no way of knowing what the members
actually
convicted him on or which particular use.”
Without knowing which use Augspurger
had been convicted of, neither the parties nor the military judge knew
whether
the Article 15 punishment should be admitted as a matter in mitigation
or a
matter in aggravation. If Augspurger was
convicted of the same “use” for which he received the Article 15
punishment, the
members needed to be instructed to take into consideration as a matter
in
mitigation that he had already been punished for that offense. On the other hand, if Augspurger was
convicted of use on one of the other two occasions, the Government
could introduce
the Article 15 punishment in aggravation as evidence of a separate use.
In the sentencing arguments the trial
counsel referred to the Article 15 punishment as a matter in
aggravation,
taking the position that Augspurger had been acquitted of the marijuana
use
that was referenced in his confession and that was the basis for the
Article 15
punishment. The defense counsel referred
to it as a matter in mitigation, taking the position that Augspurger
had been
convicted of the marijuana use that was referenced in his confession. The military judge instructed the members as
follows:
In regard
to Specification 2 of the Charge, the court found the
accused guilty of a single use of marijuana.
If the basis for that finding was the incident described in the
accused’s
confession, Prosecution Exhibit 3, then the court is advised that when
you
decide upon a sentence in this case, you must consider that punishment
has
already been imposed upon the accused under Article 15, UCMJ, for that
offense.
Specifically, he was reduced in rank. His
prior punishment is a matter in mitigation which you must consider. Again, this only applies if, in fact, the
court’s finding of guilt was based upon the incident contained in
Prosecution
Exhibit 3.
In
giving this instruction the military judge demonstrated that
she did not know which use the members found Augspurger guilty of.
Before the Air Force court
Augspurger argued “that the finding of guilty as to use of marijuana
was
ambiguous in that it failed to specify which of the three alleged divers uses formed the basis of the conviction.” Augspurger, 2004
CCA
LEXIS 128, at *1-*2, 2004 WL 1238970, at *1.
That court concluded that the military judge erred
in not requiring the members to specify which of the three instances
presented
by the Government formed the basis of their finding; however it found
that it
was able to “determine in this case which of the three alleged uses the
appellant was convicted of, and thus we conclude the error was harmless
beyond
a reasonable doubt.” Augspurger,
2004 CCA LEXIS 128, at *4, 2004 WL 123870, at *2.
After reviewing the
evidence the court satisfied itself beyond a reasonable doubt that the
members
convicted Augspurger of the
Before this court,
Augspurger argues that the military judge erred because she did not ask
the
members to clarify their verdict before it was announced.
He argues that the Court of Criminal Appeals
also erred because it nonetheless affirmed Augspurger’s conviction and
stated
that it could determine which instance of use the members relied on by
exercising its fact-finding powers under Article 66, UCMJ, 10 U.S.C. §
866
(2000). He contends that our opinions in
United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), and United
States v. Seider, 60 M.J. 36 (C.A.A.F. 2004), necessitate reversal
of his
conviction based on these errors.
The Government argues that
there is sufficient evidence in the record to ascertain which use of
marijuana
formed the basis for Augspurger’s conviction, and that the lower court
properly
asserted its fact-finding authority in reaching its conclusion. It contends that it is a separate inquiry for
the court to determine beyond a reasonable doubt which incident the
fact-finder
used as a basis to convict the accused. The
Government argues that so long as a lower court reasonably could have
determined the fact-finder’s intent from the record beyond a reasonable
doubt,
then that court could thereafter conduct a factual sufficiency review
of that
finding. The Government urges this court
to uphold those determinations as a proper application of the lower
court’s
Article 66 fact-finding power. The
Government
also argues that even if the lower court did not have the power to
review these
findings, this court has the power to order a post-trial proceeding in
revision
to clarify the findings and should do so in lieu of outright dismissal.
DISCUSSION
In Walters, the
defendant was charged with drug use “on divers
occasions”
and the Government presented evidence of a number of instances of drug
use. 58 M.J. at
392-93. The members found the
defendant guilty of only a single use, and
not guilty
of use “on divers occasions.”
Subsequently, we decided
Seider, which differed from Walters in that there were
only two
instances of drug use alleged by the Government. Again
the members excepted
the words “on divers occasions” and found the defendant guilty of use
on only
one occasion. 60 M.J.
at 37. The Court of Criminal
Appeals in Seider reviewed the two alleged instances for legal
and
factual sufficiency and found that it was “convinced beyond a
reasonable doubt
that 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
guilt for this specification.”
In reviewing the lower court’s
decision, this court found that it was not possible to determine the
factual
basis for the members’ findings, and concluded that “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.”
60 M.J. at 38. We
noted that:
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.
This case is not
distinguishable from the rationale of Walters and Seider.
As in those cases, there is simply no
indication by the members as to the factual basis for their findings of
guilty
and not guilty. In fact, the inability
to determine the basis for the findings is reflected in this record. After the findings were announced, each party
held a different view of the basis for the findings.
The military judge was also uncertain as
reflected by her conditional instruction on how the members were to
consider
the Article 15 punishment. Accordingly, we
hold that the Court of Criminal Appeals did not have the authority to
review
and affirm Augspurger’s conviction by selecting the occasion that
formed the
basis for the conviction and then reviewing that conclusion for factual
sufficiency.
The military judge had two
opportunities to ensure that the members’ findings, as announced, were
clear as
to the factual basis for the offense. First,
she should have properly instructed the members that if they excepted
the “divers occasion” language they would need to make clear which
allegation
was the basis for their guilty finding. Second, after she examined the findings worksheet but
prior to
announcement, the military judge should have asked the members to
clarify their
findings. Once the findings of a
court-martial have been announced, any finding that amounts to a
finding of not
guilty is not subject to reconsideration or a post-trial session such
as a
proceeding in revision. See Rule
for Courts-Martial 924(a), 1102(c)(1).
It is the responsibility of military
judges to ensure that these ambiguities are clarified before the
findings are
announced and if they fail to do so the appellate courts cannot rectify
that
error. See Walters, 58 M.J.
at 397 (noting that “the inability to identify and segregate those
instances of
alleged use of which Appellant was acquitted from the ‘one occasion’
that
served as the basis for the guilty finding effectively prevents any
rehearing”).
DECISION
The decision of the
Air Force Court of Criminal Appeals is reversed. The
finding of guilty of Specification 2 of
the Charge and the sentence are set aside, and Specification 2 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.
CRAWFORD, Judge (dissenting in part and concurring in the result):
I respectfully dissent from the majority’s application of United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), to the facts of this case. I concur, however, in the result because this case can and should be decided on the basis of judicial estoppel. If it were not for the prosecutor’s argument at trial that the members’ findings pertained not to Appellant’s December 2001 use of marijuana but rather to his use on another occasion, this case could be affirmed, because the facts are easily distinguishable from those of Walters.
In
the military
justice system, administrative and nonjudicial action may be taken
against a
servicemember for a violation of the Uniform Code of Military Justice
(UCMJ), with
regard to, such as in this case, the wrongful use of a controlled
substance. Administrative punishment may
be imposed under the provisions of Article 15, UCMJ, 10 U.S.C. § 815
(2000). In this case, Appellant was given
punishment
under Article 15 for the wrongful use of a controlled substance in
December
2001. While we have held that the prior
punishment does not constitute double jeopardy and preclude a
court-martial, we
have also held that “an accused must be given complete credit
for any
and all non-judicial punishment.”
Judicial estoppel precludes a party from successfully asserting a position in a proceeding and then asserting an inconsistent position later. See Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir. 1996) (approving courts’ use of the doctrine to preclude such changes in position); United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993) (identifying one of the policies underlying judicial estoppel doctrine as “preventing internal inconsistency”). It is an effective tool for discouraging or preventing the prosecutorial inconsistency that occurred in this case. Judicial estoppel would bar the prosecution in this case from advocating at this Court a position inconsistent with that of the trial prosecutor, who had a chance to hear all the evidence and observe the demeanor of the members and the witnesses.
As
noted above, the
prosecutor’s argument in this case renders futile any attempt to
distinguish
the cases cited by Appellant, although they are otherwise
distinguishable. In Walters, the
accused was charged
with using ecstasy on divers occasions. 58 M.J. 392. Walters pleaded not guilty and the Government
presented credible evidence of as many as six instances of drug use. The members found Walters guilty of one
single use of ecstasy by excepting the
words, “on
divers occasions,” but they did not specify which of the six instances
formed
the basis for their finding.
The
prosecutor, in
his misguided zeal, tried to prevent the panel from giving Appellant
any credit
for the prior Article 15 punishment relating to the same use that
defense
counsel mentioned in his opening and closing statements.
The prosecutor wanted the Article 15 punishment
to be considered a matter in aggravation that would not serve to reduce
the
sentence. In this instance, I would
apply the logic of Military Rule of Evidence (M.R.E.) 801(d)(2)(C),
(D) to resolve the question of whether the prosecutor’s statement at
trial as
to his beliefs is binding on the Government.
At least, the argument to the military judge shows there is more
than
one incident that may have been subject to the Article 15 punishment,
thus
raising the issue of whether the Court of Criminal Appeals could affirm
the
conviction for one of the several incidents set forth in the
Government’s case. United States v.
Salerno, 937 F.2d 797,
811-12 (2d Cir. 1991); see also
M.R.E.
801(d)(2) is the same as its counterpart in the Federal Rules of
Evidence with
regard to party admissions, including adopted statements, statements by
authorized agents, and those made by principals. M.R.E.
801(d)(2)
provides that certain statements are not hearsay. Those
statements include “(C) a statement by
a person authorized by the party to make a statement concerning the
subject, or
(D) a statement by the party’s agent . . . concerning a matter within
the scope
of the agency or employment of the agent . . . made
during the existence of the
relationship.” M.R.E. 801(d)(2)(C), (D). The
courts are divided on the treatment of prosecutors’ statements. Some follow the common law principle that “no individual
should be
able to bind the sovereign.” See, e.g., United States v. Zizzo, 120
F.3d 1338,
1351 n.4 (7th Cir. 1997). Bakshinian,
in contrast, held that prosecutors can bind the sovereign. 65 F.Supp. 2d at 1106. It is
not
necessary to decide among these divergent views because, in this
instance, at
least, the trial counsel’s argument underscores the different
possibilities
concerning the findings.
The majority imposes an unnecessary per se rule on cases in which “divers occasions” are alleged, rather than examining the individual facts to “identify and segregate those instances of alleged use of which Appellant was acquitted,” __ M.J. __, (11) (citation omitted), when the facts of record make that process crystal clear. They fail to apply judicial estoppel to the divergent positions of the Government, and they fail to distinguish this case factually from Walters. But for the prosecutor’s argument, this case would be factually distinguishable from both Walters and Seider, but because the prosecutor’s arguments bind the Government, I concur in the result.