Petition for Writ of Certiorari — Rivera v. United States

86-1086 Surrema Court, US,

No. —

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In The JOSEPH F. SPANIO

Supreme Court of the United States caer

OCTOBER TERM, 1986

CANDIDO A. RIVERA, Petitioner,

Vv.

UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

EUGENE R. FIDELL

Klores, Feldesman & Tucker

2001 L Street, N.W.

Washington, D.C. 20036

(202) 466-8960

Counsel of Record

Colonel LEO L. SERGI

Captain HENRY J. SCHWEITER

Defense Services Division

Office of the Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

(202) 767-1562

Attorneys for Petitioner

<A

QUESTION PRESENTED

Does due process require that trial and intermediate ap-

pellate judges in a peacetime military felony case have the

protection of a fixed term of office?

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Constitutional and Statutory Provisions ...........

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Reasons for Granting the Writ ...................

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ok. WO —S —

TABLE OF AUTHORITIES

Cases:

In re Advisory Opinion (Chief Justice), 500 A.2d

1298 (R.1. 1985), 507 A.2d 1316 (R.1. 1986) ....

Bowsher v. Synar, 106 S. Ct. 3181 (1986) .......

Bozin v. Sec’y of the Navy, Civil No. 86-1636

Ee

Callan v. Wilson, 127 U.S. 540 (1888) ..........

Connally v. Georgia, 429 U.S. 245 (1977) .......

Johnson v. Mississippi, 403 U.S. 212 (1971) .....

Municipal Court of Seattle ex rel. Tuberg v.

Beighle, 28 Wash. App. 141 (1981), aff'd, 96

Wash.2d 713, 638 P.2d 1225 (1982) .......... 6

People v. Horan, 556 P.2d 1217 (Colo. 1976),

cert. denied, sub nom. Wittenbrink v. Colorado,

“mS

JIS mS

ID ov, vo eta cbaccaddacaces 5

State ex rel. Morales v. City Commission of

Helena, 174 Mont. 237, 570 P.2d 887 (1977) ... 6

United States v. Bozin, 22 M.J. 190 (C.M.A.

ti On a awe t's gk ewan ob e.4 7

United States v. Durham, No. 56,171/AR (C.M.A.

filed Oct. 24, 1986) (pending) ............... 6

United States v. Leonard, 22 M.J. 115 (C.M.A.

alk 6 aa bese 6

United States v. Mahan, 1 M.J. 303 (C.M.A.

a Se a ag ewe ss 3

United States v. Rivera, ACM 24487 (A.F.C.M.R.

May 25, 1985), affd, 23 M.J. 89 (C.M.A.

aU bss veh wevdsehevinwhaaes passim

Cases —Continued: Page

United States v. Wilson, 6 M.J. 214 (C.M.A.

eT ee Oe yoy FR 6

Ward v. City of Monroeville, 409 U.S. 57(1972). 6, 7

Winter v. Coor, 695 P.2d 1094 (Ariz. 1985)... .. 6

Constitution and Statutes:

sr hs ode pielg ewe ox 7

Se ee I a bs ac daw dd be me 6% s

28 U.S.C. § 1259(3) (Supp. III 1985) ........... 1,4

Military Justice Act of 1983, Pub. L. No. 98-209,

eR eters pe repay F Pa wey er err 3,4

Uniform Code of Military Justice:

Art. 6(a), 10 U.S.C. § 806(a) (1982) ......... 2

Art. 26, 10 U.S.C. § 826 (1982) ............ 2,3

Art. 66(a), 10 U.S.C. § 866(a) (1982) ........ 2

Art. 67(b)(3), 10 U.S.C. § 867(b\(3) (Supp. III

SU sales 6a oa sed a he eeesevateaass 4

Art. 67(h), 10 U.S.C. § 867(h) (Supp. III 1985) 1,3

Miscellaneous:

1984 Ann. Rep. of Code Comm. on Military

pC er rn een ee 5

L. Berkson S. Beller & M. Grimaldi, Judicial Se-

lection in the United States: A Compendium of

Provisions (Am. Judicature Soc’y 1980) ......

126 Cong. Rec. H10340 (daily ed. Oct. 2, 1980) . . 4

Cook, Courts-Martial: The Third System _ in

iw |

American Criminal Law, 1978 So. I! U.L.J. 1. 5

3 Dep't of Defense, Military Justice Act of 1983

Advisory Commission Report (1984) ......... 7

Fidell, Judicial Tenure Under the Uniform Code

of Military Justice, 31 Fed. B. News & J. 327

I nes rts Big te es Cn te re mri a

Miscellaneous — Continued:

Hearings on H.R. 6406 and 6298: Revision of the

Laws Governing the U.S. Court of Military Ap-

peals and the Appeals Process Before the Mili-

tary Personnel Subcomm. of the House Comm.

on Armed Services, No. 96-55, 96th Cong., 2d

SE Se os ce SU REKGa Ss beh rcs

H.R. 6298, 96th Cong., 2d Sess. (1980) .........

H.R. 8188, 96th Cong., 2d Sess. (1980) .........

Page

In The

Supreme Court of the Gnited States

OCTOBER TERM, 1986

CANDIDO A. RIVERA, Petitioner,

v.

UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Candido A. Rivera respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on November

10, 1986.

Opinions Below

The decision of the United States Air Force Court of

Military Review was issued on May 24, 1985. United States v.

Rivera, ACM 24487 (A.F.C.M.R. May 24, 1985). That deci-

sion is unreported, and is reproduced in the Appendix to this

Petition. The decision of the United States Court of Military

Appeals is reported at 23 M.J. 89 (C.M.A. 1986), and is

reproduced in the Appendix.

Jurisdiction

The jurisdiction of this Court is invoked under 10 U.S.C.

§ 867(h) (Supp. III 1985) and 28 U.S.C. § 1259(3) (Supp. II

1985). The judgment of the Court of Military Appeals was

entered on November 10, 1986.

Constitutional and Statutory Provisions Involved

The Fifth Amendment provides:

No person shall be . . . deprived of life, liberty, or prop-

erty, without due process of law . . . .

(1)

2

Article 6(a) of the Uniform Code of Military Justice (“the

Code”), 10 U.S.C. § 806(a) (1982), provides:

The assignment for duty of judge advocates of the

Army, Navy, Air Force, and Coast Guard shall be made

upon the recommendation of the Judge Advocate

General of the armed force of which they are members.

The assignment for duty of judge advocates of the

Marine Corps shall be made by direction of the Comman-

dant of the Marine Corps.

Articles 26(a) and (c) of the Code, 10 U.S.C. § 826(a) & (c)

(1982), provide:

(a) A military judge shall be detailed to each general

court-martial. The Secretary concerned shall prescribe

regulations providing for the manner in which military

judges are detailed for such courts-martial and for the

persons who are authorized to detail military judges for

such courts-martial.

(c) The military judge of a general court-martial shall be

designated by the Judge Advocate General, or his

designee, of the armed force of which che military judge

is a member for detail in accordance with regulations

prescribed under subsection (a). ... A commissioned of-

ficer who is certified to be qualified for duty as a military

judge of a general court-martial may perform such duties

only when he is assigned and directly responsible to the

Judge Advocate General, or his designee, of the armed

force of which the military judge is a member and may

perform duties of a judicial or nonjudicial nature other

than those relating to his primary duty as a military

judge of a general court-martial when such duties are

assigned to him by or with the approval of the Judge Ad-

vocate General or his designee.

Article 66(a) of the Code, 10 U.S.C. § 866(a) (1982), pro-

vides:

Each Judge Advocate General shall establish a Court of

Military Review which shall be composed of one or more

panels, and each such panel shall be composed of not less

an a

3

than three appellate military judges. ... The Judge Ad-

vocate General shall designate as chief judge one of the

appellate military judges of the Court of Military Review

established by him. The chief judge shall determine on

which panels of the court the appellate judges assigned to

the court will serve and which military judge assigned to

the court will act as the senior judge on each panel.

Statement of the Case

On May 31, 1984, Petitioner was convicted by a general

court-martial at Andrews Air Force Base on charges of sex-

ual misconduct with a minor. He entered mixed pleas but was

convicted on all charges and sentenced to confinement for 12

years, a dishonorable discharge, and reduction in enlisted pay

grade.

The judge who presided at the trial was an Air Force of-

ficer assigned to judicial duties for no fixed term. Instead, in

accordance with Article 26 of the Code, he served at the

pleasure of the Judge Advocate General and was subject to

transfer at any time. The same is true of the three judges who

sat on the Court of Military Review panel that decided Peti-

tioner’s case without oral argument.

The single issue presented by this Petition was raised

before the Court of Military Review and the Court of Military

Appeals. On mandatory review, the untenured judges of the

Court of Military Review dismissed the issue as involving

merely a matter of policy to be determined by Congress, the

President or the Air Force. An understrength Court of

Military Appeals granted discretionary review on an

unrelated issue. 21 M.J.(C.M.A. 1985). That court ultimately

affirmed, finding no prejudice from the one error it iden-

“tified. 23 M.J. 89 (C.M.A. 1986) (two judges participating).

This Court would lack jurisdiction if the Court of Military

Appeals had denied Rivera's petition for review in its entire-

ty. 10 U.S.C. § 867(h\(1) (Supp. IIT 1985). While that court

declined to grant review on the issue pressed in the instant

Petition,' the legislative history of the Military Justice Act of

' Denial of review has no precedential value. United States v. Mahan, |

M.J. 303, 307 n.9. (C.M.A. 1976).

4

1983 makes it clear that this Court has jurisdiction over any

case in which the Court of Military Appeals has granted

review, even if the grant of review did not include the par-

ticular issue on which certiorari is sought. Section 1259 gives

this Court jurisdiction over “decisions” of the Court of

Military Appeals in, inter alia, “cases” reviewed under Arti-

cle 67(b)\(3) of the Code. This is in contrast with an earlier ad-

ministration proposal that would have confined the certiorari

jurisdiction to “issues” upon which the lower court had

granted review.? The House eschewed the “issues” approach,

and passed a bill employing the broader “cases” phraseology

in 1980. 126 Cong. Rec. H10340-42 (daily ed. Oct. 2, 1980)

(H.R. 8188). That language was carried over in the measure

that became the Military Justice Act of 1983. Pub. L. No.

98-209, 97 Stat. 1393. Congress’s use of the broader term in

the legislation ultimately enacted indicates its intention to

permit review by writ of certiorari over any issue raised in

the Court of Military Appeals, provided that court granted

review on some issue in the case. Accordingly, the issue

presented in this Petition is properly before the Court.

Reasons for Granting the Writ

This case raises one of the most fundamental open issues of

constitutional law: whether due process requires that a judge

in a criminal case have the protection of a fixed term of office.

It is undisputed that the trial and intermediate appellate

judges who sat in Petitioner’s case had no such protection. As

a former judge of the Court of Military Appeals has written,

“a military judge, whether at the trial level or on the bench of

a Court of Military Review has no fixed term. He is subject to

decertification as a judge or transfer to other duties at the

discretion of the Judge Advocate General of his

* H.R. 6298, § 4(a), 96th Cong., 2d Sess. (1980), reproduced in Hearings

on ALR. 6406 and 6298; Revision of the Laws Governing the U.S. Court of

Military Appeals and the Appeals Process Before the Military Personnel

Subcomm. of the House Comm. on Armed Services, No. 96-55, 96th Cong.,

2d Sess. 39 (1980).

5

armed force.” Cook, Courts-Martial: The Third System in

American Criminal Law, 1978 So. Ill. U.L.J. 1, 17-18 (foot-

note omitted).

Each year, thousands of members of the armed services are

tried by courts-martial presided over by such judges.

Thousands of cases are reviewed by the four Courts of

Military Review. During Fiscal Year 1984 (the last year for

which published data are available), there were 12,009

general and special court-martial convictions and 9,053 deci-

sions of the Courts of Military Review. 1984 Ann. Rep. of

Code Comm. on Military Justice (1985). The Question

Presented applies to each branch of the service.

In addition, the issue posed in this case has potential im-

plications for the administration of justice in those state court

systems in which lower court judges, magistrates or Justices

of the peace serve at the pleasure of an appointing body or of-

ficer.4 The only case in which this Court has been asked to ex-

amine the constitutionality of such appointments is People v.

Horan, 556 P.2d 1217 (Colo. 1976) (en banc), cert. denied sub

nom. Wittenbrink v. Colorado, 431 U.S. 966 (1977), where

the petitioner had the right to a trial de novo on appeal from a

municipal court the judge of which served at the pleasure of

the city council.

In the military, in contrast, the accused has no right to a

trial de novo on appeal. The Court of Military Review has

fact-finding powers, and must be independently persuaded of

3 This case does not call upon the Court to address the sufficiency of the

armed services’ procedures for decertification of military judges; the Peti-

tion focuses only on military judges’ exposure to transfer to other duties.

4 See generally Fidell, Judicial Tenure Under the Uniform Code of

Military Justice, 31 Fed. B. News & J. 327, 329 & nn.23-24 (1984); L.

Berkson, S. Beller & M. Grimaldi, Judicial Selection in the United States: A

Compendium of Provisions 52 (Alas. magistrates), 76 (Ga. local courts), 105

(Mich. magistrates), 113 (Mo. probate court comm’rs), 142 (Okla. spec.

judges), 148 (Pittsburgh magistrates and traffic court judges), 155 (S.D.

part-time magistrates) (Am. Judicature Soc'y 1980).

6

the accused’s guilt or innocence and the appropriateness of

the sentence, but the judges of that court also have no protec-

tion in office.§ :

The decision of the Air Force Court of Military Review is

consistent with unpublished decisions by untenured judges of

the Army and Navy-Marine Corps Courts of Military

Review.® It conflicts, however, with decisions of several state

courts that have invalidated arrangements under which

judges lacked the protection of fixed terms. For example, in

Winter v. Coor, 695 P.2d 1094 (Ariz. 1985) (en banc), the

Supreme Court of Arizona, albeit on state constitutional

grounds, struck down an ordinance under which a magistrate

served at the pleasure of the town council. See also Municipal

Court of Secttle ex rel. Tuberg v. Beighle, 28 Wash. App. 141,

622 P.2d 405 (1981), affd, 96 Wash.2d 713, 638 P.2d 1225

(1982) (en banc) (invalidating summary removal of “pro tem”

judges); State ex rel. Morales v. City Commission of Helena,

174 Mont. 237, 570 P.2d 887 (1977) (invalidating city commis-

sion’s power to terminate at will police judge’s appointment);

cf. In re Advisory Opinion (Chief Justice), 500 A.2d 1298 (R.1.

1985), 507 A.2d 1316 (R.I. 1986) (chief justice held not

removable by simple vote of state legislature).

Due process requires a bench that is impartial and not sub-

ject to outside influence. Ordinarily, this doctrine comes into

play where there are elements of prejudgment or bias related

5 The fact that the civilian judges of the Court of Military Appeals do

have statutorily-fixed terms is immaterial. Unlike the Courts of Military

Review, that court lacks the power to set aside a conviction or modify a

sentence based on its independent assessment of guilt or innocence or

sentence appropriateness. L/nited States v. Wilson, 6 M.J. 214, 215 (C.M.A.

1979); United States v. Leonard, 22 M.J. 115, 116(C.M.A. 1986) (Everett,

C.J., concurring). Even if it had that power, the availability of an appellate

stage that meets constitutional standards does not cure constitutional

defects at earlier stages of the judicial process. Ward v. City of

Monroeville, 409 U.S. 57, 61-62 (1972); Callan v. Wilson, 127 U.S. 540

(1888).

6 The Court of Military Appeals denied in its entirety a petition for grant

of review in the case decided by the Navy-Marine Corps Court. United

States v. Bozin, 22 M.J. 190 (C.M.A. 1986), collateral review pending sub

nom. Bozin v. Sec’y of the Navy, Civil No. 86-1636 (D.D.C.). A petition for

grant of review by the Court of Military Appeals has been filed in the Army

case. United States v. Durham, No. 56,171/AR (C.M.A. filed Oct. 24, 1986).

7

to the particular case, issue or litigant. E.g., Johnson v.

Mississippi, 403 U.S. 212, 216 (1971). In some instances, due

process imposes obligations of a more structural nature, such

as where compensation arrangements give the judge an in-

centive to convict, Ward v. City of Monroeville, supra, or to

issue search warrants. Connally v. Georgia, 429 U.S. 245

(1977).

This case presents a structural issue. But that is not to say

that it is a mere intellectual exercise. This Court correctly

recognized in Bowsher v. Synar, 106 S. Ct. 3181, 3188-90

(1986), that the removal power renders the removabie official

subservient to the holder of the power. In the military con-

text, the untrammeled power to reassign sitting judges to

nonjudicial functions casts a serious pall over the in-

dependence of the military trial and intermediate appellate

benches. The gravity of this defect was revealed by a 1984

study performed by the Department of Defense. According

to that study, 36% of the Air Force’s military judges and 33%

of its appellate military judges were aware of instances in

which a military judge was threatened with reassignment or

actually reassigned because of his or her decisions. 3 Dep’t of

Defense, Military Justice Act of 1983 Advisory Comm’n Rep.,

Pt. II, § III, at 8 (table A) (1984). The percentage of Air Force

military judges aware of such instances was higher than in

any other armed force. While the survey also showed that

cases of actual or threatened transfer were rare, widespread

awareness of the threat of transfer necessarily has a chilling

effect upon judicial independence.

Were conditions such as these to prevail in the civilian

courts, the threat to constitutional standards of due process

would be self-evident. There is no reason, especially in

peacetime, to apply a lower standard to the military by re-

quiring its judges to serve without the modicum of independ-

ence that comes from a predetermined term of office.

8

Conclusion

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

EUGENE R. FIDELL

Klores, Feldesman & Tucker

2001 L Street, N.W.

Washington, D.C. 20036

202) 466-8960

Counsel of Record

Colonel LEO L. SERGI

Captain HENRY J. SCHWEITER

Defense Services Division

Office of the Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

(202) 767-1562

Attorneys for Petitioner

JANUARY 1987

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS.

No. 52815

ACM 24487

UNITED STATES, APPELLEE,

Vv.

CANDIDO A. RIVERA, TECHNICAL

SERGEANT, U.S. AIR FORCE, APPELLANT.

Nov. 10, 1986.

Accused, airman first class, was convicted by general

court-martial of offenses of carnal knowledge of daughter,

communicating indecent language to daughter, and sodomy.

The United States Air Force Court of Military Review af-

firmed, and review was granted. The United States Court of

Military Appeals, Everett, C.J., held that: (1) indecent note

from accused to daughter, which constituted corpus delicti of

charge of “communicating indecent language” to which ac-

cused had pled guilty, was admissible to prove oral sodomies

to which he entered not guilty pleas, and (2) military judge’s

erroneous comments to members, which informed them of of-

fenses to which defendant had pled guilty, were not pre-

judicially erroneous.

Affirmed.

Opinion of the Court

EVERETT, Chief Judge:

After appellant had entered mixed pleas, a general court-

martial with members convicted him of four sex-related of-

fenses involving his adopted daughter; and he was sentenced

to a dishonorable discharge, confinement for 12 years, and

reduction to airman first class. The convening authority ap-

(la)

2a

proved the results; and the Court of Military Review affirmed

in an unpublished opinion. Thereafter, this Court granted

review of this issue:

WHETHER, IN A CASE INVOLVING MIXED

PLEAS, THE MILITARY JUDGE ERRED BY IN-

FORMING THE MEMBERS OF THOSE OFFENSES

TO WHICH APPELLANT HAD ENTERED PLEAS

OF GUILTY AND THE FINDINGS THEREON PRIOR

TO PRESENTATION OF EVIDENCE ON SEPARATE

OFFENSES TO WHICH HE HAD PLED NOT

GUILTY, AND BY ADMITTING EVIDENCE, OVER

DEFENSE OBJECTION, CONCERNING THOSE OF-

FENSES TO WHICH APPELLANT HAD PLED

GUILTY DURING THE HEARING ON FINDINGS ON

SEPARATE OFFENSES TO WHICH HE HAD PLED

NOT GUILTY.

.

Rivera was charged with carnal knowledge of his daughter,

Raquel, on December 25, 1983; communicating indecent

language to her on the same date; carnal knowledge with her

during June 1982; and sodomy with her during November

and December 1983, in violation of Articles 120, 134, and

125, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934,

and 925, respectively.

Upon being arraigned, the defense unsuccessfully moved to

have the two December 25th offenses treated as multiplicious

for findings. Then, after indicating that appellant planned to

plead guilty to these two charges, defense counsel moved in

limine “that the Charges and Specifications to which the ac-

cused intends to plead guilty along with any evidence relating

to those specific charges not be provided to the court

members until the sentencing phase of this trial.” He argued

that the charges were similar and the victim the same, so the

risk was great that, in deliberating on the contested charges,

the court members would be influenced prejudicially by the

information received as to the uncontested offenses.

3a

In response, trial counsel conceded that a stipulation of

fact, which supported the anticipated guilty pleas and which

addressed only the uncontested offenses, should not go

before the members prior to deliberations on the other

charges. Likewise, he recognized that govenment witnesses

on the contested charges should not be asked at that stage

any questions going “solely to evidence substantiating the of-

fenses to which” it was anticipated the accused would “plead

guilty.” Nevertheless, the prosecutor contended that some of

his evidence on the uncontested charges

has relevance to the remaining charges to which we an-

ticipate the accused will plead not guilty. Therefore, the

Government suggests that if that evidence is otherwise

admissible toward the contested offenses that it should

nevertheless be admitted even though it may also

substantiate in part and parcel the accused’s plea to the

two charges to which he intends to plead guilty.

Additionally, trial counsel urged that, according to the case

law, it was proper to advise the court members at the outset

of all charges upon which the accused had been arraigned,

and he offered a proposed instruction —previously judicially

approved—to explain that situation to the members. Trial

counsel contended that appropriate instructions to the

members could limit the potential spill-over effects from such

evidence, feared by the accused. Earlier, defense counsel had

argued that there was no legitimate purpose to which the

members could put this information prior to the sentencing

stage; and trial counsel responded that, in this case,

awareness of the uncontested offenses would explain to the

members the otherwise-curious hiatus in time between the

dates of the contested offenses and the dates when they were

discovered and would make clear the circumstances of their

discovery.

In reply, defense counsel reminded the judge that the con-

tested offenses were closely related in nature to the un-

contested ones. Therefore, he contended that, whatever the

merit to trial counsel’s argument, an unacceptably high risk

existed that the court-martial members would reason im-

da

properly that, if Rivera pleaded guilty to some of these of-

fenses, then he also must be guilty of the other, similar of-

fenses.

Finally, the military judge ruled that he would advise the

members of all the charged offenses and of the accused’s

pleas thereto but that he would not permit either the stipula-

tion of fact in support of the uncontested offenses or a charge

sheet containing those charges to be considered by them. In

addition, he ruled as to anticipated testimony that if it “is ad-

missible as to the other charged offenses under the military

rules of evidence, I will allow those witnesses to testify.” Of

course, he also indicated that appropriate limiting instruc-

tions would be given as to the use to which the members could

put all this information.

After Rivera had been arraigned and had entered the an-

ticipated pleas, the members assembled. Consistent with the

judge’s ruling, they were not given copies of the charges to

which Rivera had pleaded guilty. Instead, they received a

copy—referred to as a “flimsy”—only of the contested

charges which they were to decide. In addition, the military

judge gave these preliminary instructions, again consistent

with his announced intent:

You have before you a flimsy. A flimsy is not evidence, it

is merely a statement of what the accused has been

charged with. The accused has pled not guilty to those

charges that appear before you and this case is based

upon the charges and specifications that you have before

you. As I said before, charges and specifications are

simply written accusations of offenses and are not any

evidence of the accused’s guilt or of the allegations they

contain.

I will advise you at this time that in a prior '39(a) Session

which was held this morning, the accused pled guilty to

two other charges and specifications thereunder. In a

moment I will advise you of what those were, however, |

caution you with the following instruction and you must

follow this instruction, it is vitally important. The

accused pled guilty in this court and has been found

guilty of Charge I and Charge II which do not appear

5a

before you. He pled not guilty to Charge II and the Addi-

tional Charge which does [sic] appear before you. Con-

cerning the contested charges that do appear before you,

no inference, none whatsoever, adverse to the accused

may be drawn from his guilty plea. The guilty plea may

not be considered in any way as evidence going to the

contested charges.

Sergeant Rivera pled guilty to having carnal knowledge

with his daughter on the 25th of December 1983.

Sergeant Rivera also pled guilty to communicating to his

daughter, Raquel Rivera, a child under the age of six-

teen, certain indecent language. This also occurred on

December 25th, 1983.

Please understand, ladies and gentlemen of the court,

that is irrelevant to why you are here today. He has pled

guilty; I’ve heard what he has to say, and I have found

him guilty of those two offenses and at an appropriate

time you will be required to consider those. But as to why

we are here this morning as to guilt or innocence, you are

only to look at the evidence presented to you as to those

two charges. Because of what happened earlier you are

not to consider that—do you all understand?

After selection of the court members but before they had

heard any evidence, trial counsel sought in an Article 39(a),

UCMJ, 10 U.S.C. § 839(a), session to establish the ad-

missibility of prosecution exhibit 2—a note purportedly writ-

ten by Rivera. This note, which formed the basis of the

charge of communicating indecent language to which ap-

pellant already had pleaded guilty, read:

Raquel,

Since it’s Christmas, you think I can get a “Freebie”

from you? I love your Christmas gift. I’ll wait till [sic] you

finish your nails. I hope you say yes. I love you[

Dad

By “Freebie” I mean that normally I give you $30-$50

for your services, but since it’s Christmas maybe you may

give it to me free. Don’t worry about your menustration

[sic]

Love,

Dad

6a

In an offer of proof in support of his motion, trial counsel

indicated that the victim would testify that she had inter-

preted the phrase, “Normally I give you $30-$50 for your

services,” to refer to the contested charge of committing oral

sodomy during November and December 1983. Thus, the

prosecution argued that the note was admissible

not for the purpose of substantiating Charge III to which

the accused has pled and has been found guilty . . . [bjut

rather ... as an admission by the accused pursuant to

Military Rule of Evidence 801(d\2), concerning the prior

sexual activity of the accused and his daughter which is

the substance for the allegations of the remaining con-

tested charges.

“Alternatively” —and expressly as a “secondary” theory of ad-

missibility — trial counsel contended that, based on the same

proffer, the note was admissible under Mil.R.Evid. 404(b),

Manual for Courts-Martial, United States, 1969 (Revised edi-

tion), “concerning other offenses and acts which have a

tendency to prove intent, knowledge, plans, et cetera.”

Objecting to admission of this note, defense counsel urged

initially that, although the victim might draw the interpreta-

tion indicated by trial counsel, “the note on its face, the con-

tents of that note, do not, by themselves, offer any kind of an

admission on the part of the accused.” As to admissibility

under Mil.R.Evid. 404(b), the defense contended that the

note would permit the members to draw the inference that, if

Rivera had committed the offenses to which he already had

pleaded guilty, then he probably acted in conformity

therewith and committed the contested offenses, as well-a

use of evidence specifically proscribed by Mil.R.Evid. 404(a).

Moreover, counsel insisted that, even if it were admissible

under one of the theories offered by the prosecution, the note

nonetheless should be excluded under Mil.R.Evid. 403 as be-

ing substantially more prejudicial than probative. The

military judge deferred ruling on the matter until he had

heard the Government's witnesses; but, ultimately, he over-

ruled the defense objection.

During the trial, Raquel testified that appellant had given

her the note on Christmas Day, 1983, and that the hand-

writing was his. According to her, the reference to “$30 — $50

7a

for your services” was to the money he had paid her on the

three occasions when she had performed fellatio on him in

November and December 1983. Each time, he had solicited

the act with a written note. On direct examination, Raquel

did not testify about the sexual intercourse on Christmas Day

1983, to which appellant had pleaded guilty. However, by

way of explaining how her father’s activity had come to light,

she indicated that, when her mother had confronted her with

the note on the day after Christmas, she had told her mother

about having had sexual intercourse with appellant the day

before. Over the course of three resulting interviews with

agents of the Office of Special Investigations (OSI), she had

revealed the acts in November and December 1983 and in

June 1982, which formed the basis of the contested offenses.

On cross-examination by the defense, Raquel conceded that

she had been angry with her father and wanted to see him

punished for the Christmas Day intercourse. Later, defense

counsel argued that this anger had led her to fabricate the

contested charges of intercourse in June 1982 and of oral

sodomies in November and December 1982.

Raquel’s mother also testified for the prosecution. She ex-

plained that she had found the note on Christmas Day and

had asked her husband why he had written it. According to

her testimony, Rivera responded, “I don’t know why I did it”;

“admitted that he” had written it; and asked her “to forgive

him.” She then had informed the police of her suspicions.

While she was on the stand, the members souglit to ask:

“Did you leave the house for any amount of time on 25 Dec.

83?” The judge did not permit this question to be asked and

instead gave this instruction:

As I have instructed you, what occurred on the 25th

December, the fact that the note was written, okay,

which you have heard testimony to, that is the only thing

that is pertinent. If there is something in the 25th

December, vis-a-vis the note, you can clarify it, Colonel

Robson, in time.

With this testimony, trial counsel rested the Government's

case. Defense counsel offered no evidence. Before submitting

8a

the case to the members, the military judge discussed with

counsel the need for limiting instructions on the use of the

note. Defense counsel confirmed -that the defense did not

seek —and specifically did not want—such an instruction.

Consistent with the Government’s announced purpose, as-

sistant trial counsel made this reference to the note in closing

argument:

New, if that [Raquel’s testimony] were all there was, if

that were all of the testimony, there might still be a seed

of doubt in your mind. The reason for that seed of doubt

would be just the testimony of a young girl, but there’s

more than just her testimony and that something else is

the note. In this case to paraphrase a parable, or a

chinese proverb, this note is worth a thousand witnesses

because the note is a note provided by the defendant,

written by nim, and specifically refers to sodomy that oc-

curred in November and December 1983. The reference

is by means of the term “services,” references to services

to which Raquel was paid thirty to fifty dollars. As you

recall, Raquel specifically mentioned that after the

sodomy in November and December of 1983, she was

paid some monies and the note specifically refers to that.

If there is any doubt in you[r] mind as to her credibility at

this point, it should be dissolved by that fact; by that un-

solicited note.

Having offered no evidence to contradict the charges, the

defense relied entirely on a claimed prosecution failure to

prove every element of the alleged offenses beyond a

reasonable doubt. The linchpin of that position is clear in this

portion of defense counsel's closing argument:

It is the defense’s position in this particular case, con-

trary to what the Government has suggested, that they

have not met their burden as to each and every element

as to the two contested offenses. And in support of that,

the defense would cite you to the testimony as well of

Raquel Rivera. Certainly, the thrust of this case, the guilt

or innocence aspect, turns very much so on the testimony

of Raquel Rivera and the credibility of Raquel Rivera. It

is quite evident from the evidence, if you believe Raquel

Ya

Rivera’s testimony here today, that a conviction would

more than likely follow on these charges. However, the

Government, as they have pointed out, certain indica-

tions as to why you should believe her testimony, the

defense would cite other factors to be considered as well

in evaluating the overall thrust of Raquel’s testimony.

* > * * * *

Now, an additional matter to consider would be a possible

motive for Raquel to misrepresent these facts. By her

testimony she was in fact upset at the offense to which

Sergeant Rivera has already pled guilty. Based upon that

and subsequent to, over a period of time, she began

relating that other things had happened. Certainly then,

the interpretation she gave of the particular note in ques-

tion is, in fact, self-serving, and she indicated quite plain-

ly that she was very angry with her father and wanted to

see him punished. . . .

In closing, members of the court, as I have stated, the

task ahead of you is enormous. The bulk of that regards

determining the credibility of the child witness, Raquel

Rivera. The defense would suggest that her credibility,

her believability, is not as clear-cut as the Government

would contend.

Subsequently, the military judge gave this instruction to

the members concerning Rivera’s guilty pleas:

I cannot emphasize any more strongly than I have, but I

will reiterate once again, the accused pled guilty to

Charge I, the charge of carnal knowledge with his

daughter on the 25th of December, and he pled guilty to

Charge III, which is communicating in writing indecent

language to his daughter on the 25th of December. Those

are not to be weighed by you in any way in your duty to

determine guilt or innocence regarding the two remain-

ing charges. | hope that is clear and I'll expect you to

totally follow that instruction as with the rest of them.

10a

In focusing the members’ attention on the real issue in the

case, the military judge delivered this instruction on the

evidence:

In determining the believability of witnesses you must

consider each witness’ intelligence, ability to observe, act

and remember, sincerity, conduct in court, friendships

and prejudices, and their character for truthfulness. You

must also consider the extent the witness was either sup-

ported or contradicted by other evidence, the relation-

ship this witness may have with either side, the cir-

cumstances under which the witness testified, and how

the witness might be affected by the verdict.

Neither party objected to the instructions given or requested

additional instructions.

II

We have recited the trial proceedings in detail in order to

present fairly the rather unusual circumstances relevant to

the granted issue — whether the judge erred in apprising the

members of the offenses to which appellant had already

pleaded guilty and admitting into evidence the note which

was the corpus delicti of one of those offenses.

A

Before the Uniform Code of Military Justice was amended

by the Military Justice Act, Pub.L.No. 90-632, 82 Stat. 1335

(1968), there were no military judges; law officers sat only in

general courts-martial and not in special courts; no procedure

existed for pretrial hearings before a military judge; and

there was no authority for a military judge to enter a finding

of guilty based on a guilty plea. Therefore, the court-martial

members entered findings on all the charges against an ac-

cused, regardless of his plea. Under such conditions there

simply was no way to preclude court members from knowing

that an accused who pleaded not guilty to some of the charges

before them had pleaded guilty to others.

lla

As a result of the statutory changes made in 1968, this

situation no longer exists. Now a military judge can arraign

an accused before the members have assembled. See Art.

39(a). At that time, the judge may enter findings of guilty as

to any offenses to which the accused has entered guilty pleas.

Art. 45(b), UCMJ, 10 U.S.C. § 845(b). Thus, it is entirely

feasible for the members to try contested charges without

being informed of other pending charges or of guilty pleas

that have been entered thereto.

Both at trial and on appeal, the defense has forcefully

argued that no useful purpose is served by allowing the court

members to be informed of offenses as to which, earlier in the

trial, the military judge has entered findings of guilty on the

basis of the accused’s guilty pleas. Arguing that to provide

such information gratuitously unnecessarily prejudices an ac-

cused, appellate defense counsel state in their brief:

Permitting the members of a court-martial to be advised

of all the charges and mixed pleas prior to the hearing

and entry of findings on the merits of the contested

charges is seriously prejudicial because it erodes the

presumption of innocence as to offenses the accused

wishes to contest. Such a procedure clearly, seriously and

needlessly undermines both the presumption of innocence

and the reasonable doubt standard of proof, each of

which is vital to the fair administration of justice.

In support of this position, the defense cites United States

v. Nixon, 15 M.J. 1028, 1030-31 (A.C.M.R.), pet. denied, 17

M.J. 183 (1983), where the Court of Military Review ob-

served:

[W]e believe that the practice of informing court

members of the existence of a charged offense, and of a

guilty plea and a finding of guilty thereon prior to presen-

tation of evidence on another charge to which an accused

has pleaded not guilty is an anachronism. We urge

military judges to discontinue the practice in courts-

martial. .. . No useful purpose is served by the continua-

tion of such practice which merely provides a fertile area

for assertion of error on appeal. The better course for a

12a

trial judge faced with pleas of both guilty and not guilty

would be to delay informing the members of the guilty

plea and finding until the sentencing portion when such

knowledge is necessary to perform the sentencing func-

tion.

(Footnote omitted).

The defense properly emphasizes that in trials by courts-

martial every effort is made to assure that an accused will not

be found guilty of one offense merely because he is guilty of

other crimes. Thus, Mil.R.Evid. 404(b) provides that evidence

of other misconduct is inadmissible “to prove the character of

a person in order to show that the person acted in conformity

therewith.” Likewise, this Court has emphasized that “admis-

sions implicit in a plea of guilty to one offense cannot be used

as evidence to support the findings of guilty of an essential

element of a separate and different offense.” United States v.

Wahnon, 1 M.J. 144, 145 (C.M.A. 1975), quoting from United

States v. Caszatt, 11 U.S.C.M.A. 705, 706, 29 C.M.R. 521,

522 (1960). Indeed, it appears that a plea of guilty to another

offense can be considered only when that other offense is

lesser-included within an offense alleged by the same

specification as to which the plea is being offered in evidence.

See R.C.M. 920(e), Discussion (3d para.), Manual for Courts-

Martial, United States, 1984.

Perhaps our prohibition against use in evidence of pleas of

guilty is too rigorous and deserves reexamination. Certainly,

it seems incongruous that, if evidence of other misconduct

qualifies for admission under one of the exceptions contained

in Mil.R.Evid. 404(b), the Government nonetheless is pre-

cluded from proving that the accused has pleaded guilty to

committing such misconduct. However, so long as this pro-

hibition exists, it would be absurd to exclude evidence of a

guilty plea and yet allow the court members to be advised by

the military judge that the guilty plea has been entered.

Moreover, if we were to allow admissibility of guilty pleas to

other closely related offenses, the existence of those pleas

should be brought before the court members during the

regular presentation of the evidence and with suitable in-

structions— not placed before them by the judge at the begin-

ning of trial.

13a

The dangers in allowing the factfinder to receive informa-

tion about pleas of guilty to unrelated charges is especially

great in courts-martial, because military law is very liberal! in

allowing the joinder of charges. Thus, an accused who pleads

guilty to one charge would run the risk that court members

will draw an adverse inference of his guilt as to another

charge which he is contesting and which is completely

unrelated.

Conceivably, an accused may himself desire to bring before

the court members the fact that he has pleaded guilty to

charges unrelated to those which they are trying. Perhaps his

defense counse! wishes to argue that the accused was perfect-

ly willing to plead guilty to the crimes of which he, in fact,

was guilty, but that he has pleaded not guilty to the remain-

ing charges because he is innocent thereof. Perhaps his

counsel fears that, if information about the guilty plea is not

revealed until the time of presentencing proceedings, the

court members will feel that they have been duped and, in

resentment, will adjudge a more severe sentence. However, a

military judge certainly should not presume that an accused

is willing to have this potentially damaging information as to

a guilty plea brought to the members’ attention unless, in

fact, the accused or his counsel has given some specific in-

dication to this effect.

The Manual for Courts-Martial, United States, 1984, which

took effect after trial of appellant’s case, takes a similar posi-

tion. In the Discussion of R.C.M. 910(g), military judges are

admonished:

If the accused has pleaded guilty to some specifications

but not others, the military judge should consider, and

solicit the views of the parties, whether to inform the

members of the offenses to which the accused has

pleaded guilty. It is ordinarily appropriate to defer

informing the members of the specifications to which the

accused has pleaded guilty until after findings on the re-

maining specifications are entered.

l4a

In their analysis of this provision, the Manual’s drafters ex-

plained:

The discussion is new and recognizes that it may be un-

necessary and inappropriate to bring to the members’ at-

tention the fact that the accused has pleaded guilty to

some offenses before trial on the merits of others. See

United Siates v. Nixon, 15 M.J. 1028 (A.C.M.R. 1983).

See also United States v. Wahnon, 1 M.J. 144 (C.M.A.

1975).

App. 21, R.C.M. 910(g), Manual (1984), supra.

Both the Air Force and the Army have formally adopted

the approach suggested by the Court of Military Review in

Nixon and urged in the Manual Discussion. See para. 4-4b,

Air Force Regulation 111-1 (Aug. 1, 1984); para. 2-25 n. 5,

D.A.Pam. 27-9 (Military Judges’ Benchbook) (Change 1, Feb.

15, 1985). If military judges follow the guidance provided by

the discussion of R.C.M. 910(g) and by the Air Force and

Army directives, the interests of justice will best be served.!

B

Even though the joinder of criminal charges may have the

effect of limiting rights which the Government might other-

wise possess, see United States v. Marymont, 11 U.S.C.M.A.

745, 751, 29 C.M.R. 561, 567 (1960), we do not believe that

the joinder of charges as to which an accused pleads guilty

necessarily precludes admission of evidence as to other of-

fenses to which not-guilty pleas have been entered.

Regardless of the plea, the evidence establishing the

accused’s misconduct can be received if it qualifies for admis-

sion under Mil.R.Evid. 404(b) and is not unduly prejudicial

under Mil.R.Evid. 403. For example, if an accused charged

with several drug offenses pleads guilty to some of them,

evidence of those offenses may nonetheless be admissible to

1 Accordingly, we do not agree with the “advice to trial judges” to the

contrary in Part III of the opinion in United States v. Boland, 22 M.J. 886,

890-91 (A.C.M.R. 1986).

15a

prove the remaining charges if it shows motive, intent, plan,

or absence of entrapment. Cf. Mil.R.Evid. 404(b).?

A similar situation exists here with respect to the note from

Rivera to his adopted daughter. Trial counsel linked this note

closely to the contested charges that Rivera had engaged in

fellatio with his adopted daughter during November and

December 1983. Indeed, Raquel specifically testified that a

certain suggestive clause in the note referred to the alleged

oral sodomies.

Raquel’s credibility was a central issue in the trial; and at-

tacking her credibility was the sole basis for appellant’s

defense. The note—although it strongly suggested general

misconduct by Rivera—was especially important because it

tended to corroborate Raquel. Her testimony was the

keystone of the Government’s case, so this corroboration was

vital. The note was not used to show that appellant was a per-

son of bad character who probably had acted in the way that a

bad man would.

Under these circumstances, Mil.R.Evid. 404(b) would not

have excluded admission of the note even if there had been no

charges against Rivera with respect to his activities on

December 25, 1983. The pendency of the charges and

Rivera’s guilty pleas thereto do not change the situation. Of

course, the note tended to show appellant’s guilt of the very

offenses as to which he had pleaded guilty. However,

whether those offenses were charged or uncharged made lit-

tle difference. Indeed, Rivera may have benefited from the

members’ knowledge that he had pleaded guilty to other of-

fenses, becasue they would have no incentive to find him guil-

ty of the contested charges just to assure that he did not

escape justice altogether.

The note was not subject to a hearsay objection if it came

within Mil.R.Evid. 801(d\2,A), “Admission by party-

opponent,” which provides: “A statement is not hearsay if . . .

[t]he statement is offered against a party and is (A)the party’s

2 Likewise, an offense as to which an accused has pleaded guilty might be

a proper subject of cross-examination if he testifies. Cf. Mil.R.Evid. 608(b).

l6a

own statement in either the party’s individual or represen-

tative capacity.” Trial counsel satisfactorily established,

without contradiction by the defense, that the note was writ-

ten by Rivera to his daughter. Because Rivera was a party to

the proceedings, this foundation satisfied the requirements of

the rule and took the note outside the ambit of the hearsay

prohibition.

Of course, to conclude that a statement is not hearsay does

not, alone, make the statement admissible. The hearsay rules

and their exceptions are rules of exclusion, not inclusion. As

with any other type of evidence, for an out-of-court state-

ment to be admissible, it must be relevant. Mil.R.Evid. 402.

The prosecutor and the military judge, as well, were con-

sciously concerned with ensuring that no evidence irrelevant

to the contested charges would be presented to the members

during the trial of those charges. However, the Government

had the right to offer any available evidence which was rele-

vant to those charges. An accused may not stymie that right

by pleading guilty to certain selected charges to which such

evidence also is relevant.

We are fully convinced that the note in question was rele-

vant to the contested charges of fellatio during November

and December 1983. The prosecutor satisfactorily linked the

note to those charges in his examination of Raquel Rivera,

whose credibility was the pivotal issue in the trial. The note

tended to fortify her credibility; and it did so in other ways

than simply showing that Rivera was a bad man who

therefore might have committed the crimes alleged.

The military judge was required to weigh the probative

value of the note against the danger of undue prejudice. See

Mil.R.Evid. 403. If, in his calculus of the interests the pro-

bative value outweighed the possibility of prejudice, then he

acted properly in admitting the note in evidence.

C

Introduction of the note must have made it clear to the

court members that appellant had been found guilty of some

other serious crimes. Even if they had not been advised ini-

tially about the other offenses to which Rivera had pleaded

17a

guilty, they would then have become aware of the misconduct

involved. Therefore, even though the judge erred in pro-

viding the court members with information about the other

offenses to which appellant had pleaded guilty, this error was

non-prejudicial. The court members simply learned early in

the trial about other wrongdoing, of which they would in any

event have been generally apprised later in the trial. Under

these circumstances-—especially in light of the judge’s

repeated and emphatic advice to the members about the

limits on use of the information they had been furnished on

the uncontested charges and trial defense counsel’s affirma-

tive request that no special instruction be given on the proper

use of the note as evidence — we conclude that Rivera was not

prejudiced.

Ill

The military judge should have granted the motion in

limine and not informed the court members about appellant’s

guilty pleas. However, the Government was entitled to in-

troduce the challenged note into evidence. Under these cir-

cumstances and in light of the specific instructions given by

the military judge, we conclude that the errors committed

here caused no prejudice to Rivera.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge COX concurs.

Judge SULLIVAN did not participate.

18a

APPENDIX B

Wednesday, November 13, 1985

86-30

ORDERS GRANTING PETITION FOR REVIEW

No. 52815/AF. U.S. v. Candido A. Rivera. CMR 24487.

Granted on Issue IV raised by appellate defense counsel as

follows:

The military judge erred by informing the members of of-

fenses to which appellant had entered pleas of guilty and

the findings thereon prior to presentation of evidence on

separate offenses to which he had pled not guilty, and by

admitting evidence, over defense objection, concerning

those offenses to which appellant had pled guilty during

the hearing on findings on separate offenses to which he

had pled not guilty.

19a

APPENDIX C

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 24487

UNITED STATES

Vv.

TECHNICAL SERGEANT CANDIDO A. RIVERA,

FR 090-40-9087

UNITED STATES AIR FORCE

24 MAY 1985

Sentence adjudged 31 May 1984 by GCM convened at An-

drews Air Force Base, Maryland. Military Judge: Leonard S.

Clark.

Approved sentence: Dishonorable discharge, confinement at

hard labor for twelve (12) years and reduction to airman first

class.

Appellate Counsel for the Accused: Mr. Eugene R. Fidell,

Washington, D.C., Colonel Leo L. Sergi and Major William

H. Lamb. Appellate Counsel for the United States: Colonel

Kenneth R. Rengert and Captain Joseph S. Kistler.

Before RAICHLE, CANELLOS and CARPARELLI, Ap-

pellate Military Judges

DECISION

PER CURIAM:

The accused was convicted of two specifications of carnal

knowledge, sodomy on divers occasions with his adopted

daughter, and communicating indecent language to his

adopted daughter, who was a child under the age of 16. On

20a

appeal the accused has asserted twelve assignments of error

for our consideration. We find none of them prejudicial to the

substantial rights of the accused and affirm. However, a

number of the issues raised merit brief discussion.

The accused first alleges that the trial proceedings should

be set aside because the military judge lacked the protection

of a term of office, and, in fact, that the proceedings in this

Court are objectionable because we too are not afforded the

protection of a term of office by either statute or regulation.

We find that the accused has no right under the due process

clause of the constitution to have his case decided by a

military judge who has either life tenure or a specified term

of office. As noted by the Supreme Court in discussing the

differences between military and civilian courts, “[FJor in-

stance, the Constitution does not provide life tenure for those

performing judicial functions in military trials. They are ap-

pointed by military commanders and may be removed at

will.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76

~$.Ct. 1, 5, 100 L.Ed. 8, 14 (1955). This same sentiment was

later expressed by the same court in Palmore v. U.S. 411 U.S.

389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). Thus, it is ap-

parent that no such due process right belongs to an accused

in the military judicial system.

Whether or not to require any sort of tenure or term of of-

fice for military judges, on either the trial or appellate level,

is a matter of policy to be determined by Congress, the Presi-

dent, or the Department of the Air Force. However, until

such time as that occurs, this issue is without merit.

The accused next argues that since only two-thirds of the

members (or five votes) were required to convict the accused,

the due process clause of the constitution was violated.

Again, we disagree. This issue has been raised numerous

times before the Courts of Military Review and has uniformly

been dismissed. See United States v. Rojas, 15 M.J. 902

(N.M.C.M.R. 1983) and cases cited therein. Further, the

Supreme Court recently denied a petition for certiorari based

on this issue. See United States v. Hutchinson, 15 M.J. 1056

2la

(N.M.C.M.R. 1983), 18 M.J. 281 (C.M.A. 1984), cert. denied,

____. U.S. ___, 105 S.Ct. 384, 83 L.Ed.2d (1984). According-

ly, we find this assignment also to be without merit.

Finally, the accused avers that the military judge erred to

his prejudice by denying the court members’ request to be

furnished with psychiatric information concerning the

accused. After the members had deliberated on sentence for

almost two hours, the President of the court reported that

the members wished to know “if it would be a possibility for a

psychiatric evaluation to be made available to the panel prior

to sentencing.” The military judge responded:

No, Sir, a psychiatric evaluation is not appropriate to the

panel. The issue of a psychiatric evaluation was not

raised and that would not be appropriate. If that had

been appropriate, either the defense or the government

would have offered something regarding that. But, it was

not and it is not evidence for you to consider.

The Court of Military Appeals has set out the following fac-

tors to be considered by the military judge when court

members request that additional evidence be procured:

Difficulty in obtaining witnesses and concomitant delay:

the materiality of the testimony that a witness could pro-

duce; the likelihood that the testimony sought might be

subject to a claim of privilege; and the objections of the

parties to reopening the evidence are among the factors

the trial judge must consider.

United States v. Lampani, 14 M.J. 22 at 26 (C.M.A. 1982). It

thus appears that the military judge applied an incorrect

standard, or no standard at all, when ruling on the members’

request. However, we are unable to find any prejudice to the

accused from this error. No objection was made to the

military judge’s ruling by either the government or the

defense and the matter was pursued no further by either side,

although either could have raised the matter during a subse-

quent session out of the presence of the panel. Further, trial

defense counsel specifically rejected any instruction regard-

ing psychiatric evidence when queried by the military judge

during a prior session on matters in extenuation and mitiga-

22a

gation. Finally, neither the prosecution nor defense made any

attempt to offer psychiatric evidence at any stage in the pro-

ceeding. In fact, there is no evidence of record to suggest that

the accused had undergone psychiatric evaluation. We

decline to speculate whether such an evaluation may have

been beneficial to the accused. Finding no prejudice to the ac-

cused arising from the military judge’s error, we grant no

relief. Article 59a), U.C.M.J.

We have considered the remaining assigned errors and

resolved them adversely to the accused. See United States v.

Engle, 1 M.J. 387 (C.M.A. 1976). We conclude that, consider-

ing all the facts and circumstances of this case, the accused's

sentence was clearly appropriate.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

OFFICIAL

/s) CHARLES L. WILLE

Charles L. Wille

Captain, USAF

Chief Commissioner

US GOVERNMENT PRINTING CFFICE 1986— 170.646 42009