# Petition for Writ of Certiorari — Rivera v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1091

## Text

86-1086 Surrema Court, US,
No. —

T T ] ’ rT, ]
ay i alee ee A
i
|
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

* 7 ¥
sae
4

nr ARR ERERERERER EET TEER EE
es a cae hago bens 4640240500
Constitutional and Statutory Provisions ...........
i sc sce ebdceuneeeceeeseeses
Reasons for Granting the Writ ...................
eg aE Se re

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2590%3A1. Public record. Not legal advice.