Joint Appendix — United States v. Scheffer

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Supreme cout, US. |

ny FILED

Y JUL 3 1997

GLERK |

No. 96-1133

In the Supreme Court of the Gnited

OCTOBER TERM, 1996

UNITED STATES OF AMERICA, PETITIONER

EDWARD G. SCHEFFER

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

JOINT APPENDIX

ORMOND R. FODREA WALTER DELLINGER

Major, United States Air Force Acting Solicitor General

Appellate Defense Division Department of Justice

Bolling Air Force Base Washington, D.C. 20530-0001

Washington, D.C. 20332-8000 (202) 514-2217

(202) 767-1562 Counsel of Record

Counsel of Record for Petitioner

for Respondent

a ee

PETITION FOR WRIT OF CERTIORARI FILED:

JANUARY 16, 1997 7,

CERTIORARI GRANTED: MAY 19, 1997 /

TABLE OF CONTENTS

Accused’s Motion Concerning Polygraph

Evidence, including attachments ......................++.

Government’s Response to Accused’s Motion .........

Military Judge’s Ruling on Accused’s Motion

I i MII literal adimailinictdbdaeenencisereustieneensene

Accused’s Testimony (ROT pp. 288-291, 304-313) ...

Renewed Defense Motion (ROT p. 316) ..................

Closing Arguments (ROT pp. 339 et seq.) ...............

(I)

—

SESS

DEPARTMENT OF THE AIR FORCE

AIR FORCE LEGAL SERVICES AGENCY

USAF JUDICIARY WESTERN CIRCUIT

TRAVIS AIR FORCE BASE, CALIFORNIA 94535

UNITED STATES

AMN EDWARD G. SCHEFFER

FR554-85-0300

22 Transportation Squadron

March AFB, California

~ ACCUSED’S MOTION CONCERNING THE

ADMISSION OF POLYGRAPH RESULTS

ISSUE

Whether the application of Military Rule of Evi-

dence 707 to prohibit the accused from introducing in

his defense the results of an exculpatory polygraph

examination would render this court-martial funda-

mentally unfair and deprive him of due process of law?

FACTS

1. On 7 April 1992, Airman Scheffer provided a

urine sample at the request of Special Agent Rob

Shilaikis, of Detachment 1803, Air Force Office of

Special Investigations, March AFB, California.

(1)

2. On 10 April 1992, Special Agent J. Black, a poly-

grapher trained and certified by the Department of

Defense, who was assigned to AFOSI, District 18,

Norton AFB, California, administered a polygraph ex-

amination to Amn Scheffer.

3. SA Black asked Amn Scheffer several “relevant”

questions, among them: “Since you’ve been in the

Air Force, have you used any illegal drugs?” Amn

Scheffer responded that he had not.

4. SA Black, as well as other qualified and experi-

enced polygraphers, determined that Amn Scheffer’s

responses “indicated no deception.” This means, in

lay terms, that he “passed” the test—he was telling

the truth.

5. In May 1992, the Air Force Drug Testing Lab-

oratory, located at Brooks AFB, Texas, reported that

Amn Scheffer’s urine sample tested positive for the

presence of methamphetamine metabolites. The re-

sults of this urinalysis form the sole basis for Charge

II and its specification.

LAW AND ARGUMENT

The Court of Military Appeals, in U.S. v. Gipson, 24

M.J. 246 (CMA 1987), recognizes the argument that

an accused has a constitutional right to present

exculpatory evidence which is relevant and helpful.

“When evidence meets these criteria, [that is, rele-

vance and helpfulness,| no additional justification for

admissibility is necessary. Mil. R. Evid. 401 and 402.”

Gipson, supra, at 252. The Court ruled that the mili-

tary judge’s refusal to allow the defense to attempt to

lay a foundation for the admissibility of the results of

an exculpatory polygraph examination was reversible

error. The Court suggests that military judges

should, for due process purposes, “bend even further

than normal in the direction of giving the accused the

benefit of the doubt,” when evaluating the admissi-

bility of polygraph evidence under MRE 401 through

403.

This liberal approach to the admissibility of defense

evidence is founded upon an accused’s constitutional

right to a fair trial and to due process of law. As the

Supreme Court states in Chambers v. Mississippi, 41

United States Law Week 4266, 4269 (1973), “The right

of an accused in a criminal trial to due process is,

in essence, the right to a fair opportunity to defend

against the State’s accusations. The right[{] to...

call witnesses in one’s own behalf [has] long been

recognized as essential to due process.” The Court

considers this right to call witnesses and present

evidence—the accused’s “right to his day in court”—

to be one of “the most basic ingredients” and “funda-

mental element(s]” of due process. Washington v.

Texas, 388 U.S. 14, 18 (1967).

Admittedly, the government has an interest in for-

mulating procedural rules that assure, insofar as

possible, that only reliable evidence is presented to

the trier of fact. A problem of constitutional dimen-

sions may arise, however, when the state enacts a per

se rule prohibiting the admission at trial of certain

types of evidence. These per se rules are often vio-

lative of due process. See Rock v. Arkansas, 55

United States Law Week 4925 (1987) (hypnotically-

refreshed testimony), Chambers, supra (hearsay), and

Washington, supra (testimony of principal in same

crime).

In fact, when evidence bears persuasive assurances

of trustworthiness, and is critical to the defense, the

best rule is that the per se procedural rule should be

critically evaluated. For instance, the Supreme

Court in Chambers remarked, “In these circum-

stances, where constitutional rights directly affect-

ing the ascertainment of guilt are implicated, the

hearsay rule may not be applied mechanistically to

defeat the ends of justice.” Chambers, supra, at 4271.

Military Rule of Evidence 707 would operate to

prohibit Amn Scheffer from seeking to introduce the

results of the exculpatory polygraph. The Discussion

to this per se procedural rule indicates that in the

opinion of the Drafters of the Manual for Courts-

Martial and, hence, in the opinion of the Executive,

there is an “aura of near infallibility” about a poly-

graph test which creates “a danger of confusion of the

issues,” “can result in a substantial waste of time,”

and “places a burden on the administration of justice

that outweighs the probative value of the evidence.”

The Drafters also maintain that the reliability of the

polygraph machine has not yet been determined.

The problem, of course, is that the Drafters and

the Executive have not analyzed this particular

polygraph test. Their Rule prohibits the admission of

the results of this particular polygraph test when it

may very well be perfectly reliable and probative and

not misleading. In any event, it certainly constitutes

evidence that is material and necessary to Amn

Scheffer’s defense.

CONCLUSION AND RELIEF REQUESTED

Military Rule of Evidence 707, a per se proced-

ural rule enacted by executive fiat, violates Amn

Scheffer’s right to due process of law. You should

declare it unconstitutional, and disregard it.

The defense should be allowed to lay a foundation

for the admission of the polygraph test at issue. The

military judge should evaluate the adequacy of the

foundation from the standpoint of relevance and help-

fulness and, “in these areas, judges should bend even

further than normal in the direction of giving the

accused the benefit of the doubt.” Gipson, supra, at

252.

/s/ WILLIAM A. KURLANDER

WILLIAM A. KURLANDER, Capt, USAF

Detailed Defense Counsel

/s/ RONALD J. WILLIAMS

RONALD J. WILLIAMS, Capt, USAF

Individual Military Counsel

SOURCE AND TARGET MANAGEMENT RECORD

MAKE LEGIBLE ENTRIES BY HAND OR

TYPEWRITER

FILE NO. DETACHMENT NO.

Det 1803

TITLE BLOCK

(Complete for recruitment or changes)

PROGRAM NICKNAME (if applicable)

SEVEN

CHECK APPLICABLE BLOCKS

XX OPEN OR REOPEN 'TERMINATE

EDWARD GLENN SCHEFFER

Male Born: 16 Nov 70, CA

—e FR 554-85-0300

Sq (SAC)

March rn ARE. CA

ROUTINE REPORTS \ATTACHMENTS | AFSC: 47232

No \AFOSI FORM 38 | RACE: CAU

Yes = |AFOSI FORM 39

TRANSFER TO: (PCS/DISCH ORDER

TARGET(S)

NARCOTICS

INFORMATION (Received, levies, notes)

1. HOME ADDRESS: Bldg 976, Rm 109, March

AFB, CA

2. DUTY PHONE: 655-5023

3. CELL PHONE: 328-7638

POV: Ford Ranger/green/brown trim

license #: Unk

HA: SA ROBERT H. SHILAIKIS

AHA: SA DAVID P. RITER

DCII RESULTS:

9. BACKGROUND: SOURCE was brotght to Det

1803 by his Ist Sgt because SOURCE stated he had

information concerning narcotics. SOURCE provided

no information pertaining to narcotics and in our

opinion used the excuse to talk to OSI in hopes it

would get him out of trouble with his squadron. MSgt

ROBINSON, SOURCE’S Ist Sgt, advised that

SOURCE has been continually late for duty. On 10

Mar 92, SOURCE was again interviewed concerning

narcotic information. SOURCE again provided no

information advantageous to OSI. SOURCE did con-

sent to the search of his person, residence and the

seizure of his urine for the purpose of chemical!

analysis. AGENT NOTE: On 6 Apr 92 it was found

that SOURCE’s urine was secured in the evidence

room, but not sent out to the laboratory. SOURCE

did refuse consent to search his vehicle. It is stil!

unclear as to why. No contraband or paraphernalia

[illegible] found in any of the searches. SOURCE

was told that if he came across any information

relevant to contact HA. On 3 Apr 92, SOURCE

contacted HA telephonically and provided the

following information: SOURCE stated there was a

“big deal going down”. When questioned further it

was determined SOURCE grew up with a white

male named ROBERT DAVIS who [in] traffics

methamphetamine. DAVIS buys his product from

BILLY (NFI). BILLY receives his shipments from

Ps PF >

Mexicans down south (NFI). SOURCE was in-

structed to tag along and provide intel to HA on 6 Apr

92. SOURCE was told to find out what the cost of 1/8

oz would be. SOURCE stated BILLY would only deal

in oz’s and above. SOURCE stated that it would cost

$650.00 per oz. Cn 6 Apr 92, SOURCE contacted HA

telephonically. SOURCE was instructed to meet

with HA and AHA at 1200 hrs same day. SOURCE

was met and provided an abundance of information.

SOURCE showed HA and AHA wihjere BILLY

resides. AGENT NOTE: On 6 Apr 92, TOM

SALSBERRY, West End County Task Force,

Riverside, CA, further identified BILLY as BILLY

FINK who resides on Una street off of Markham.

FINK is on felony probation for

[Right Margin]

ADMINISTRATIVE DATA (Agent name, date, cost, pertinent file

numbers)

3-7 Apr 92

HA: SA SHILAIKIS

AHA: SA RITER

COST: $18.21

SPECIAL HANDLING REQUIRED

FOR OFFICIAL USE ONLY

methamphetamine sales. SOURCE was also asked

if he has ever seen a lab which he replied yes.

SOURCE was asked if he knew what chemicals were

used to make meth which he replied, acedic acid,

ephedrin and R-11 to gas the product. This informa-

tion is consistent with methamphetamine labs.

SOURCE consented to provide a urine specimen but

could not produce. SOURCE agreed to provide a

urine specimen on 7 Apr 92. On 7 Apr 92, SOURCE

provided a consensual urine specimen. It was learned

that SOURCE was late to work. SOURCE stated he

went to DAVIS’ apartment on 6 Apr 92 and left there

at approx 1230 hrs. SOURCE stated the last thing he

remembers is being on Allessandro Blvd. SOURCE

stated he woke up on the 215 freeway at a rest stop

with his doors to his truck open and his personal

belongings thrown around. SOURCE stated nothing

was missing. When asked, SOURCE stated he was

fine, that he was coherent, and that he didn’t need a

doctor.

10. MOTIVATION: SOURCE’S motivation stems

from two apparent avenues. Even though he has been

told on numerous occasions that we (OSI) can not

promise him anything, he feels we can help him PCS

from March [AFB]. It is in the opinion of the HA that

he also feels by playing both sides of the fence (OSI vs

Transportation) he will be able to get out of some

trouble.

11. LAC: No derogatory information found.

12, HANDLING PROBLEMS ANTICIPATED:

Yes. SOURCE is an embellisher of the truth. He

likes to have an audience. But he has thus far

conducted all levies tasked expediently. He is

very knowledgeable concerning methamphetamine.

SOURCE has stated over and over that he does not

use or distribute. SOURCE has provided two con-

sentual urinalysis and is scheduled for a polygraph

examination on 10 Apr 92. Before using SOURCE to

conduct controlled buys, SOURCE will be tested on a

confidence buy. Through strict levies and a tight rein

SOURCE could possibly produce major narcotics

cases.

13. MEDICAL RECORDS REVIEW: A review of

SOURCE’s medical records was conducted on 6 Apr

92 by Col FOODY, 22d Medical Group for the purpose

of polygraph examination. No information was found

to preclude SOURCE from being examined.

14. CONTACTING INSTRUCTIONS: SOURCE is

to contact HA by beeper and phone at least twice per

week.

15. USM COMMENTS: HA is the USM. Concur.

16. DETCO COMMENTS: Concur with HA and

USM. Treat with care. Always meet SOURCE with

two agents.

17. BRIEFINGS PROVIDED: SOURCE was

briefed on the following: AFR 205-57, Entrapment.

SOURCE also read, understood and signed a declara-

tion of agreement.

SOURCE AND TARGET MANAGEMENT RECORD

MAKE LEGIBLE ENTRIES BY HAND OR

TYPEWRITER

FILE NO. DETACHMENT NO. TITLE BLOCK

1803 (Complete for recruitment or changes)

PROGRAM NICKNAME (if applicable)

SEVEN

CHECK APPLICABLE BLOCKS

OPEN OR REOPEN TERMINATE

ATTACHMENTS

X ROUTINE REPORT AFOSI FORM 88

TRANSFER TO: AFOSI FORM 39

PCS/DISCH ORDER

TARGET(S)

INFORMATION (Received, levies, notes)

On 10 Apr 92, Source, after advisement of rights

and signing a Statement of Consent to Polygraph

related the following: —

Source states he has been up front with OSI and

hasn’t lied about the drug information he’s provided.

He also stated he hasn’t used any illegal drugs since

entering the AF. He related he told his parents about

his work with OSI. When discussing his past, Source

stated he used meth quite a bit before coming into the

AF and lied on his enlistment forms about his drug

use.

The following relevant questions were asked:

a. Since you’ve been in the AF, Have you used any

illegal drugs? no

b. Have you lied about any of the drug information

you’ve given OSI? no

c. Besides your parents, have you told anyone

you’re assisting OSI? no

Analysis of the charts indicated no deception to the

above questions.

The Statement of Consent and allied polygraph data

are on file at Hq AFOSI.

[Right Margin]

ADMINISTRATIVE DATA (Agent name, date, cost, pertinent file

numbers)

/s/ J. BLACK

SA J. BLACK

10 Apr 92

AFOSI Dist 18

Norton AFB, CA

SPECIAL HANDLING REQUIRED

FOR OFFICIAL USE ONLY

SOURCE AND TARGET MANAGEMENT RECORD

MAKE LEGIBLE ENTRIES BY HAND OR TYPEWRITER

FILE NO. DETACHMENT NO. TITLE BLOCK

Det 1803 (Complete for recruitment or changes)

CHECK APPLICABLE BLOCKS

{|} OPEN OR REOPEN _|TERMINATE

{[ }] ROUTINE REPORTS !ATTACHMENTS

\AFOSI FORM 38

\AFOSI FORM 39

TRANSFER TO: IPCS/DISCH ORDER

TARGET(S)

NARCOTICS

INFORMATION (Received, levies, notes)

INFORMATION: Results from AFDTL on

SOURCE’s consensual urinalysis results revealed

SOURCE’s urine positive for methamphetamine.

NOTE: This information confirms HA’s suspicions of

SOURCE being a pathological liar. SOURCE came

up non-deceptive on his polygraph, but yet was using

narcotics while providing info to AFOSI. SA Black,

AFOSI Dist 18/Polygraph was notified concerning

SOURCE’s urinalysis results.

ADMINISTRATIVE DATA (Agent name, date, cost, pertinent file

numbers)

14 May 92

HA: SA SHILAIKIS

COST: NA

SPECIAL HANDLING REQUIRED

FOR OFFICIAL USE ONLY

DEPARTMENT OF THE AIR FORCE

IN THE FIFTH JUDICIAL CIRCUIT

UNITED STATES

AMN EDWARD G. SCHEFFER

F'R554-85-0300

22 Transportation Squadron

March AFB, California

UNITED STATES RESPONSE TO DEFENSE

MOTION TO ADMIT POLYGRAPH RESULTS

NATURE OF MOTION: In response to the Defense

Motion to Admit results of the polygraph adminis-

tered to the accused, the United States contends that

polygraph results are inadmissible evidence under M.

R. E. 707 and that the Defense Motion should there-

fore be denied.

SUMMARY OF FACTS: The United States does not

adopt all of the facts from the accused’s summary of

facts, but we do adopt the following: On 7 April 1992,

the accused provided a consensual urine sample to the

OSI from Det. 1803, March AFB. The sample was

sent to Brooks AFB laboratory, and tested positive

for methamphetamine. On 10 April 1992, OSI SA

Black from District 18, Norton OSI administered a

polygraph test to the accused.

DISCUSSION: The United States contends that the

state of the law regarding the admissibility of poly-

graph results is clearly stated in the Military Rules

of Evidence 707, which states that “Notwithstanding

any other provision of law, the results of a polygraph

examination, the opinion of a polygraph examiner, or

any reference to an offer to take, failure to take, or

taking of a polygraph examination, shall not be admit-

ted into evidence.” The rule was promulgated

effective 6 July 1991, in the form of an amendment to

the MCM.

The Defense motion relies on two main arguments:

First, that U.S. v. Gipson, 24 M.J. 246 (CMA 1987)

“recognizes the argument that the accused has a

constitutional right to present exculpatory evidence

which is relevant and helpful” (Id. at 252), and

secondly, that per se rules regarding the inadmissi-

bility of evidence, such as M.R.E. 707, may be violative

of due process.

The Defense motion cites the Gipson court statement

that the majority “recognizes” the constitutional

argument that the accused has a right to present evi-

dence, but in the paragraph that follows that citation,

the court makes clear that they do not subscribe to

that argument. The court states that “There can be

no right to present evidence—however much it

purports to exonerate an accused unless it is shown

to be relevant and helpful” (Id. at 252). That is, the

court believed that there is no independent consti-

tutional right to present exculpatory evidence, unless

it comports with the Federal Rules of Evidence for

relevancy and helpfulness. The Defense also cited the

court for the suggestion that for due process reasons,

judges should bend to give the accused the benefit of

the doubt. In the actual context of the opinion, the

Gipson majority opinion was that due process may be

satisfied by working within the federal rules, not

outside of them. The court noted, while disagreeing

with the theory that the accused has an independent

constitutional right to present any evidence, that due

process “... has an impact in two respects. ...” The

court then implies simply that judges should be more

flexible when deciding whether the federal rules

regarding relevancy and probative value have been

satisfied by the accused. But certainly, the Gipson

court at no point held that the federal rules do not

apply, or subscribed to the notion that the accused has

an independent constitutional right to present evi-

dence, including favorable polygraph evidence, outside

of the federal rules.

The Gipson opinion was more of a search for co-

herence in the federal rules, as opposed to a decision

that created a new independent constitutional right

outside of the Federal rules. The decision was made

in 1987 in the context of the failure by the drafters of

the Federal Rules of Evidence and the Military Rules

of Evidence to provide any guidance on the Frye test

of admissibility of polygraph results based upon

acceptance in the scientific community. In U.S. v.

Howard, 24 M.J. 897 (1987), the court opinion notes

that the per se ban on the admissibility of polygraph

results, set out in a long line of decisions since the

1923 Frye decision, was mirrored in the 1969 MCM in

paragraph 142(e), but that the per se rule was not

addressed in the 1984 MCM. Thus, the courts from

1984 until 1991, were left to interpret the federal

rules that remained. Thus, with no guidance re-

garding their approach to the question of polygraph

admissibility, the court turned to the guidance laid

out in MRE 401-403, and 702. The Gipson court, in

searching for coherence in the rules, noted that the

four federal rules on which it was relying “. . . seem to

describe a comprehensive scheme. .. Such a scheme

is within the President’s authority to promulgate

rules of evidence for courts-martial.” (Id. at 251).

Gipson and its progeny are all attempts to work

within the federal rules and not attacks on the rules

on due process grounds. In fact, in the final note-

worthy decision on point prior to July 1991, U.S. v.

Rodriguez, 34 M.J. 562 (1991), the majority states in

footnote 1 that Rule 707 now governs all decisions

regarding polygraph admissibility for cases in which

arraignment occurred after 6 July 1991.

The defense motion cited the following three cases,

also cited in the Gipson decision, for their due pro-

cess argument: Chambers v. Mississippi, 41 U.S.

Law Week 4266 (1973), Washington v. Texas, 388 U.S.

284 (1973), and Rock v. Arkansas, 483 U.S. 44, 107

S.Ct. 2704, 97 L.Ed.2d 37, 55 U.S. Law Week 4925

(1987). None of the cases cited are directly on point

specifically regarding polygraph evidence.

In Chambers, the per se exclusionary rule at issue

forbade cross-examination of a witness, whereas in

Rock, the rule at issue barred hypnotically refreshed

testimony by the accused himself. The Washington

case also addressed a per se rule that forbade testi-

mony by persons charged as principals, accessories,

or accomplices in the same crime as the accused from

testifying in the trial. In all three cases, the courts

focused on the constitutional right of an accused to

testify and to face his accused. Each of the per se

rules in the three cases involved the right of the

accused either to provide direct oral testimony or to

cross-examine his accusers. The decisions in all

three cases underscored the constitutional import

of these constitutional rights, as indicated in the

Chambers decision which notes that “The right to

confront and cross examine witnesses and to call

witnesses in one’s behalf have long been recognized as

essential to due process” (Id. at 4269). The Washing-

ton court also referred to the constitutional right of

the accused to cross-examine witnesses, but it is

noteworthy that even with a right as recognized as

this, the court also stated that such a right still “is

not absolute and may in appropriate cases bow to

accommodate other legitimate interests. ...” The

Rock case is also cited for the theory that due process

issues become a consideration when a rule “infringes

impermissibly on the right of a defendant to testify on

his or her own behalf” (Id. at 4930). But it is

important to note that in one of the polygraph line of

cases, U.S. v. West, 27 MJ. 223 (CMA 1988), the

court cites McMorris v. Israel, 643 F.2d 458 (1981)

in its response to Rock, by quoting the following:

“Regardless of these principles, the right of an

accused to present evidence in his defense must still

yield to established rules of procedure and evidence

designed to assure both fairness and reliability in the

ascertainment of guilt or innocence.”

The Chambers court also states the right to confront

one’s accusers is not absolute, and referred to the

traditional rationale for per se rules that exclude out-

of-court statements by stating that “Out-of-court

statements are traditionally excluded because they

lack the indicia of reliability: they are usually not

made under oath or other circumstances that impress

the speaker with the solemnity of his statements; the

deciarant’s word is not subject to cross examination;

and he is not available in order that his demeanor and

credibility may be assessed by the jury (Id. at 4270).”

This concern would be especially strong with poly-

graph results. ‘I... Rock decision itself notes that

“numerous state procedural and evidentiary rules

control the presentation of evidence and do not offend

the defendant’s right to testify” (Id. at 4928), and then

proceeds to cite Chambers and Washington for the

same theory.

The Defense is also proceeding on the notion that the

results of a polygraph test may be compared with the

constitutional rights at issue in the three cases cited,

that is, the rights to testify and cross examine one’s

accusers. The three cases cited by Defense all rely on

the rights inherent in the Sixth Amendment, but

those rights to testify and cross examine cannot be

logically compared to the admission of the results of

a polygraph test. The reliability inherent in oral

testimony provided in the presence of the factfinder

versus the faith one would have to place in the

functioning of a polygraph test is overwhelming by

comparison.

The Defense also seems to forget that admissibility of

polygraph results was a “two way street” from 1987

to 1991, and therefore the drafters certainly had an

opportunity to consider the due process arguments of

the accused on presenting exculpatory evidence, and

balance that with the threat that polygraph results

could also be used against an accused. It is the

unreliability of the polygraph, and the threatened

perception of the machine as a “lie detector” on the

part of juries that keeps the polygraph out of the

courts. The rationale of the drafters is just as likely

to protect an accused from admission of damning

evidence, than to affect his ability to present a de-

fense.

The Defense also cites the Appendix to the 1991

amendments to MRE 707, in the argument that the

per se rule prohibits the court from its ability to

judge the reliability of each individual polygraph on a

case by case basis. The best response to this parti-

cular argument is in the Appendix itself which states

that a very real fear on the part of the drafters “{Was

that admissibility of polygraph results] could result

in the court-martial degenerating into a trial of the

polygraph machine.”

The rules of evidence are to be construed, as stated

in MRE 102, to “secure fairness in administration . . .

and the promotion of growth and development of the

law of evidence to the end that the truth may be

ascertained and proceedings justly determined.”

Although Rule 102 should not be read by itself, if read

in conjunction with the explicit rationale provided in

MRE 707, the concerns expressed in both rules for

avoiding needless delay and expense and enhancing

factfinding further underscore the fact that the

drafters considered the arguments and put MRE 707

in place to protect against unreliable evidence.

The Appendix to MRE 707 states that the per se

rule is modeled on California Evidence Code 351.1,

- which creates a per se bar on polygraph evidence in

all criminal and juvenile proceedings. Several other

states, and cases from every Circuit have adopted per

se rules against admission of polygraph evidence for

the very same fears as those set out in the Appendix

to 707, that is, the fear of unreliability, confusion, and

the threat to the “integrity of the judicial system”

should such evidence be admitted.

CONCLUSION: MRE 707 prohibits the use of poly-

graph evidence in courts-martial. The rationale sup-

porting the rule, found in case law and in the federal

rules themselves, clearly states that such evidence is

unreliable and poses a threat to the integrity of the

court-martial. All of the case law, including those

cases cited by the Defense, states that the right to

present evidence is not absolute, but that evidence

must satisfy those evidentiary and procedural rules

that exist to protect the criminal process. We there-

fore respectfully request that the polygraph results

of the accused be declared inadmissible in the court-

martial in question.

Respectfully submitted,

/s) EDWARD J. DAMICO

EDWARD J. Damico, Lt., USAF

Assistant Trial Counsel

DEPARTMENT OF THE AIR FORCE

IN THE FIFTH JUDICIAL CIRCUIT

UNITED STATES

AMN EDWARD G. SCHEFFER

F'R554-85-0300

22 Transportation Squadron

March AFB, California

Military Judge’s Ruling on Accused’s

Polygraph Motion (Record of Trial)

* * * * *

[42] MJ: * * * Polygraph exam, defense counsel, do

we need any evidence on that?

DC: As to the polygraph motion, Your Honor, we

think that we don’t need to call any live

witnesses, and that the evidence that we have

produced, those three Air Force OSI Form) 14s

attached to the motion, clearly show that a

urine sample was obtained on the 7th of April

1992, that there was a so called exculpatory

polygraph given to Airman Scheffer on the 10th

of April 1992, and that apparently the urine

sample came back positive. The results of the

urinalysis, or the purported results of the

urinalysis, don’t jive with the results of the

exculpatory polygraph. We think that the [43]

DC:

MJ:

documents speak for themselves, and we don’t

need to provide any testimony on this, sir.

Is Airman Scheffer planning to testify regard-

ing that specification on the merits?

Your Honor, are you asking whether Airman

Scheffer intends to testify in the case in chief?

Right.

We are not prepared to disclose that, sir.

What about U.S. versus Abeyta which indicates

that polygraph results would only be relevant if

he did testify, and was asked the same question

that he was asked on the polygraph.

Your Honor, may I please ask you for the cite to

U.S. versus Abeyta?

25 MJ 97, Court of Military Appeals, 1987.

May we take a three minute recess, Your Honor.

Certainly. I’m going to stay right here, but

court will be in recess.

(The Article 39(a) Session recessed at 1055

hours, 14 October 1992, was called to order at

1105 hours, 14 October 1992, with all parties

present when the court recessed again present.)

Court will come to order. Please be seated.

ATC II: All parties who were present when the court

MJ:

recessed are again present. The members

are absent.

Captain Kurlander?

DC: Your Honor, we are interested in a preliminary

ruling from you on this point, because that is

going to make some difference as to whether or

MJ;

DC:

not Airman Scheffer testifies as to the charge

in question. Right now, though, we anticipate

that Airman Scheffer will be testifying as to

the charge in [44] question, because we have

earlier—some time ago—put the government on

notice that we are anticipating using an inno-

cent ingestion defense in this case. Therefore,

we are asking for this preliminary ruling from

you now as to whether or not the defense would

be entitled to attempt to lay the foundation for

the admissibility of polygraph methods, because

whether or not the accused testifies, is in a

large measure going to be determined by your

ruling on this point.

All right. With the understanding then that, if

Airman Scheffer does not testify or does not

testify as to the same things he said to the

polygraph examiner, it wouldn’t be relevant, and

therefore there wouldn’t be an issue. I will go

ahead and rule on it. Do you want to go ahead

and make your argument.

Your Honor, may we have one moment, please?

Sure.

(Defense counsel conferred with individual

military counsel.)

Your Honor, I just want to make clear that right

now we do intend to call Airman Scheffer as a

witness, as to the drug charge. In terms of

argument, I’d say, Your Honor, that the Gipson

case is clear. We believe that the Vresident’s

promulgation of Military Rule of Evidence 707

really is unconstitutional if it prohibits an

accused from introducing relevant and helpful

exculpatory evidence. That’s why we want to

lay the foundation for the polygraph, to show

that in this particular case, Your Honor, the

polygraph results are relevant and helpful.

We’re not saying an accused has an independent

and constitutional right to present polygraph

evidence. We're only saying that, given the

court’s due process concerns, that the road

should be a tad bit wider for the defense, and

that we should be permitted to lay the

foundation to show that the results of this

particular test are relevant and helpful in this

case. We think that Gipson therefore, is

controlling, Your Honor, and that a consti-

tutional right takes precedence, in this case, to

Military Rule of Evidence 707. We think that

we should be permitted to lay the foundation.

[45]

MJ: I want to make it clear, Captain Kurlander, if I

didn’t before, that I am going to give you a pre-

liminary ruling on that, only with the

understanding that if you decide your client is

not going to testify then there isn’t any issue.

I’m going to wait and see if he does, and then I

will rule.

DC: I understand that, Your Honor.

MJ: So, you need to understand that I recognize—I

don’t know what kind of evidence the govern-

ment may have, but you may have some sort of a

Hobson’s choice here in that the relevant

question is “Have you ever used drugs in the

Air Force?” You may open the door to some

uncharged misconduct if he wants to testify

about that. That is the choice you are going to

have to make.

DC: I understand that, sir.

MJ: Okay. Trial counsel, argument?

TC: Your Honor, we will rest on our brief.

MJ: All right. For purposes of the motion the court

will consider the following facts:

That the accused provided the urine sample on

the 7th of April 1992, which later tested positive

for methamphetamine.

On the 10th of April 1992, the accused was ad-

ministered a polygraph exam by the OSI, and

asked the question, “Since you have been in the

Air Force, have you used any illegal drugs?”

He responded negatively. The Polygrapher’s

opinion was that no deception was indicated in

that answer.

In Gipson, the Court of Military Appeals indicated

that there was no constitutional right to present

evidence unless it was relevant and helpful, leaving

open, arguably, the question of whether the President

can determine for all cases that it’s never relevant

and helpful; at least that it’s never helpful or just

determine that it was never relevant, or whether

there is some constitutional right to present that [46]

evidence. The case law that I have reviewed, finding a

constitutional right to present polygraph evidence is

not particularly persuasive. It tends to be from some

of the trial-courts. =

As I indicated earlier, the evidence is relevant only if

the accused testifies consistently with his answer—

he testifies and answers the same question that he did

on the polygraph.

For evidence to be helpful, the testimony of the

polygrapher would have to be an area in which the fact

finder himself needs help in making a decision. It

would have to be the result of a process with suffi-

cient scientific acceptability to be relevant. The Frye

test is not the test anymore; that sort of analysis is

helpful in deciding whether at least there is sufficient

scientific acceptance of the process that the evidence

is relevant.

Lastly, the equipment, the operator, the questions

and the circumstances have to be sufficiently reliable

to be helpful to the trier of fact. It seems to me that

only the third of those three issues is case specific.

Therefore, the President may, through the Rules of

Evidence, determine that credibility is not an area in

which a fact finder needs help, and the polygraph is

not a process that has sufficient scientific accept-

ability to be relevant.

The other concern about polygraph testimony is

Military Rule of Evidence 403. The fact finder might

give it too much weight, and that there is an in-

ordinate amount of time and expense, especially in the

cases where there may be conflicting tests, which

doesn’t appear to be the case here.

The main confusion of the issue; that is, the question

of what the result of the polygraph was, as opposed

to the question of whether or not the accused used

drugs.

Given those concerns, I don’t believe that the consti-

tution prohibits the President from appropriately

ruling that polygraph evidence will not be admitted in

a court-martial.

So, your request to lay a foundation for the admission

of polygraph evidence in this case is denied.

* * * * *

DEPARTMENT OF THE AIR FORCE

IN THE FIFTH JUDICIAL CIRCUIT

UNITED STATES

AMN EDWARD G. SCHEFFER

FR554-85-0300

22 Transportation Squadron

March AFB, California

EDWARD G. SCHEFFER’S TESTIMONY

* * * * *

[288] IMC: Your Honor, at this time we would call

Airman Scheffer.

EDWARD G. SCHEFFER

was called as a witness in his own behalf, was

sworn and testified as follows:

Questions by trial counsel.

State your name, rank and your organization.

My name is—Airman Edward G. Scheffer. I

work for the 22d Transportation Squadron. I am

21 years of age.

You are the accused in this case, correct?

ae ee

Yes, sir.

DIRECT EXAMINATION

Questions by individual military counsel.

Airman Scheffer, during the month of March and

April, did you work for the OSI?

Yes, sir, I did.

When did you start working for the OSI?

Approximately 5 March, sir.

What did the OSI want you to do for them?

They wanted me to build a relationship, a

trusting relationship, with various drug dealers.

Why did they want you to build these

relationships?

So they could operate sting operations on them.

And did you do that for the OSI?

Yes, sir, I did.

[289] Q. How did you build these relationships?

By going to these people, mostly people that I

knew, speaking with them, just trying to build a

relationship that had been lost over the years —

as being friends, helping them work on their

cars, on their stereos, watching movies and stuff

like that.

Q. Did the OSI in particular, ask you to build this

kind of a relationship with Robert Davis?

A. Yes, sir, they did.

What did you do with Robert Davis to build this

relationship?

A. Robert Davis and I had been friends in the past.

So, I knew pretty much what he liked to do. We

worked on his car a lot, built stereos for cars and

talked a lot. Built back a friendly relationship.

Q. How much time did you spend with Robert Davis

from the time that you started working for the

OSI, around the 5th of March, until, let’s say, the

7th of April or so?

A. A lot, sir.

Roughly, an estimate. How many times a week

would you see him?

A. Five times a week, sir; six times.

What would you do?

A. We would—as I said before, we would work on his

car, or his stereo, eat dinner, eat lunch, possibly

breakfast, depending on when I was there, sat

around and talked, and stuff like that, sir.

Q. Now, when you were at Robert Davis’ house,

were there ever any drugs there?

A. All the time, sir.

{290} Q. Did he ever do anything with the drugs?

Yes, sir. He sold them. He weighed them. He

used them himself.

Did the OSI ever have you buy any drugs from

Robert Davis?

Yes, sir, they did.

Let’s focus on the time when you starting

developing this relationship with Robert Davis,

and about the 7th of April, I imagine that you

spent time with him—helped him with his

stereo, his car and you ate with him—what kind

of stuff would you guys eat together?

Sir, on an average we were all pretty much

addicts to Taco Bell and Del Taco. So, we would

eat at least two meals a day there. We would eat

tacos, burritos; we would get these big 48 ounce

cokes—that was a normal meal.

And who would buy the stuff?

Myself, Robert Davis or somebody else that was

around—his girlfriend or one of other friends

would go pick something up.

What would you do with it? Would you eat it

there?

They would bring it back to us. Whoever would

normally go and get it, would pay for it and—it

wouldn’t be like taking up a collection or

anything like that—they would bring it back,

and then we would all sit around and eat.

At anytime when the food had been brought

back, were there any drugs lying out around

Robert Davis’ house when you had food out?

Many occasions, yes, sir.

Were there—were you always—did you always

sit down and finish everything you had on your

plate at one sitting, or did you ever get up?

No, sir. There was many times where I went to

the bathroom, [291] or I wasn’t really in a hurry

to eat, or I wasn’t that hungry, or we needed

something, or we wanted to do something else—

I would go and set that up, or go pick something

up. I would leave my coke there and some of my

food there. There were a lot of times where

there was still stuff sitting around.

Now, you mentioned that Robert Davis had a lot

of drugs around; did you ever see him transport

these drugs anywhere?

Yes, sir, I did. There were a few times when—

mentioned Mr. Fink—we had went out to his

house. When we were coming back, he had like a

hide-a-can; it was like a haveling can with a

screw off top. A lot of times that is where he

would put his drugs, and he would transport

them in and out like that.

Now, at anytime between the time you started

working for the OSI and the 7th of April when

you took the urinalysis for the OSI, did you ever

knowingly ingest methamphetamine?

No, sir, I did not.

IMC: Thank you. No further questions.

MJ: Captain Murphy?

TC: Your Honor, was the question, up until 7 April

1992?

IMC: Up until the time that he took the urinalysis—

TC: I think you said 7 April. That is what I am con-

fused about.

IMC:1I believe 7 April 1992, was the date, Your Honor.

TC: Your Honor, we would like a 39(a).

MJ: Members, would you excuse us for a few minutes

please.

(The Members withdrew from the courtroom.)

(The court recessed at-1415 hours, 16 October

1992.)

* * * * *

[304] MJ: Captain Murphy, cross examination?

TC: Thank you, Your Honor.

CROSS EXAMINATION

Questions by trial counsel.

Q. Airman, you approached the OSI about the

information regarding Robert Davis, isn’t that

correct?

Yes, sir.

And you also approached the OSI about informa-

tion regarding Fink, isn’t that correct?

Yes, sir.

Prior to that, they didn’t know anything. You

are the one that provided them with that in-

formation what these guys were doing, correct?

Yes, sir.

Now, are you aware of what the effects of

methamphetamine are in a human body?

Yes, sir.

What are those effects?

Dilation of pupils, anxiety, loss of hunger, in-

somnia, and extreme agitation.

Have you ever used methamphetamine prior to

entering the [305] service?

Yes, sir.

So, you are aware of those effects personally in

your body?

Yes, sir.

Did any of those effects on your body include

blackouts?

Not that I can recall, sir.

Now, let’s go to the evening of April 7th—first

the day before, April 6th, 1992. Special Agent

Shilaikis asked you to provide a urine sample,

that is correct, isn’t it?

No, sir.

That’s what he testified to, isn’t it?

I believe that’s what he has testified to, sir.

What’s the truth on that? What’s your version

of that?

Sir, my recollection is that Agent Shilaikis

asked me, as he dropped me off here in Moreno

Valley, if I needed to go to the bathroom. |

stated, “No.” Then he said, “Okay, why don’t

you just go ahead and come in first thing in the

morning or give me a call before you come in

first thing in the morning.” I said, “All right.”

That was the end of the conversation. I called

him the next morning around 7:30, reported

around 8:00 o’clock and gave the urine specimen.

So, when Special Agent Shilaikis asked you to

provide a urine sample and you said, “I only

urinate once a day”, he was mistaken or lying

about that?

He was mistaken; I do only go very few times—

twice a day was my answer to that, sir.

So, his testimony was mistaken?

Yes, sir.

[306] Q. Nevertheless, you were aware, prior to 7

April 1992, that you would be providing a

urinalysis sample, is that correct?

Yes, sir, it is.

It was your idea to visit Robert Davis that even-

ing, isn’t that correct?

On the 6th, sir?

On the evening of the 6th.

I cannot recall if I was told to talk to him or on

my own, sir.

Special Agent Shilaikis testified that you told

him that you would like to go up to Davis’ place

that evening. Do you recall that testimony?

Yes, sir, I do.

Are you saying that, once again, Special Agent

Shilaikis is mistaken or inaccurate in his recol-

lection?

No, sir, I’m not.

You just don’t recall?

I don’t recall.

So, it certainly is possible that it was your idea

to go to Robert Davis’ home that evening?

Yes, sir.

Did you, in fact, go to his house?

Yes, sir.

What time did you arrive at his home?

6 or 7 in the evening, sir.

How many individuals were at his home?

[307] A. I would say four or five, sir.

ope Pp &

Was there methamphetamine present in his

home that you observed?

Yes, sir.

What did you have to consume at his home?

Sir, we normally eat, as I stated before, from

Del Taco or someplace like that. That is what

we consumed that evening. We had went to Del

Taco and brought home burritos, tacos and

cokes, sir.

Did you eat at his home, or did you eat at Del

Taco?

No, we ate at his home, sir. That was almost

always where we ate.

Did-you eat anything else?

Not to my recollection.

You normally ate Del Taco food?

Sir?

You normally ate Del Taco food?

or & ~

That night, sir?

Yes.

Yes, if my recollection served me right, yes, sir.

Do you recall making a statement to the OSI on

the 7th of April?

A statement?

Yes. A typewritten statement.

Yes, sir.

[308] Q. Would it surprise you that you stated in

ope Pp &

that statement you ate some pizza from

Little Caesars and drank two cokes?

That’s possible, sir. Like I said, that was the

best of my recollection.

Well, pizza is a little different than eating Del

Taco food?

That’s what I said, on the average we ate Del

Taco food.

Are you satisfied with probably pizza?

If that’s what I wrote down, yes, sir.

Do you recall how much pizza you ate?

No, sir.

When you ate the pizza, did the pizza taste

different or anything of that nature?

©rpopd& Pp & Pp

No, sir.

When you drank the cokes, do you recall tasting

anything different in the coke?

No, sir.

Was it regular coke or diet coke?

Regular coke, sir.

How about the second coke, anything unusual?

I don’t know. I always drink regular coke.

Did you taste anything in the coke?

Not to my recollection.

When you were done eating, that statement then

indicates that you went to Del Taco alone and

bought another coke. Do you recall that? -

[309] A. Nosir. But, I probably did.

—

TC:

Do you think if you looked at the statement, that

may refresh your recollection?

It could, sir.

Your Honor, I will mark that as Prosecution

Exhibit 10 for identification.

(Trial counsel handed Prosecution Exhibit 10

for identification to the accused to review.)

(Questions continuing by trial counsel.)

Take a look at that, and see if that will refresh

your recollection about what you ate and drank

that evening. Does that refresh your recollec-

tion about what you ate and drank that evening?

Yes, sir, somewhat.

You don’t have any reason to believe that Del

Taco puts methamphetamine in their cokes, do

you?

No, sir, I do not.

Now, after you left Del Taco, I guess you were

on your way home, is that right?

Yes, sir. On my way back here to the base.

What happened then? .

Sir, I came up to Allessandro—I worked my way

from Corona back here to Moreno Valley. I got

up here to the stop light at Allessandro, and

that is honestly the last thing that I can

remember until I figured out that I was some-

where in Barstow. I have no idea how I got

there. To this day, it still worries me. It scares

me.

Prior to that time, did you feel any sudden rush

of energy?

[310] A. No, sir, I did not.

Q. Did you feel any anxiety or anything?

A. No, sir.

After you woke up, did you feel any energy or

rush?

No, sir. I was, of course, highly nervous about

where I was and why I was there, and how | got

there. That was my being paranoid.

So, yen were paranoid about what happened to

you!

I was scared, sir, more than paranoid.

So, when Special Agent Shilaikis described you

as being nervous and anxious, that was a result

of ar fact that you didn’t know where you

were!

Yes, sir.

Nothing to do with the fact that you had taken

methamphetamine?

Sir, I didn’t take methamphetamine to my

knowledge.

So, it had nothing to do with that, right?

Yes, sir.

Let’s go back to the time before that. Prior to

the evening of the 6th of April, when you went

to Billy Fink’s home. When was the next time

prior to that?

The time prior to what, sir?

The 6th of April; the 6th of April is when you

were asked to provide the consensual

urinalysis, or Special Agent Shilaikis testified

he asked you to provide a consensual urinalysis.

Then that evening, you went to the Davis’

home?

A. Yes, sir.

[311]

Q. Prior to that, when was the first time or the

last time you were to Davis’ home prior to that?

A. The last time?

Q. Yes.

A. I believe, the night before, sir. I’m sorry, that

evening.

So, you had gone there on the night of the 5th?

Yes, sir.

Did you eat anything the night of the 5th?

As I stated once before, sir, every time I went

over there, I always ate. Because there was

normally a meal I was going to miss if I didn’t

eat something. So, yes.

Q. Do you recall tasting anything unusual in any-

ry O&O PF ©

thing that you ate?

A. No, Sir.

Q. Do you recall experiencing any sudden burst of

energy or sudden rush?

A. No, sir.

A. 7

Q. Did you feel any burst of energy?

Do you recall drinking anything that tasted

bitter?

No, sir.

How about before that, when was the next time

you visited Fink’s home?

Sir, again as I stated once before, I was there

almost every night. That was Davis’, sir. So,

like I said, I was there almost every night or

evening. As soon as I got off work, or anytime

that Agent Shilaikis had me come from the

Transportation Squadron to his office, and then

he would send me out, whether it was 8:00

o'clock in the morning, or 1:00 o’clock in the

afternoon, or 10:00 o'clock at night. It was [312]

almost always one meal a day, sometimes two.

So, to the best of your recollection, for at least a

week prior, you spent everyday at Davis’ home?

I can’t recall if it was everyday, sir. I can’t

recall that.

During any of those meals, did you feel any

sudden rush of energy?

No, sir.

Again, not to my recollection, sir.

Taste anything unusual in the food?

Again, no, sir.

Now, you told Special Agent Shilaikis that both

Davis and Fink were big time drug dealers,

right?

Yes, I did.

In fact, you told him that Fink dealt in pounds of

methamphetamine?

Yes, sir, I did.

And they didn’t find anything in Fink’s home,

did they?

I was told, no, sir.

They didn’t find anything in Davis’ home either?

From what I was told, no, sir.

TC: I have no further questions.

MJ: Captain Williams?

IMC: No redirect, Your Honor.

[313]

MJ: Questions from members of the court?

(Affirmative response from Lieutenant Piech.)

PRES:

(Lieutenant Colonel Fullenkamp) Is it possible

that the initial question that I had submitted to

the Agent could be asked, unless you

w like me to rewrite it?

DC:

I think we can find it. It’s Appellate Exhibit XV.

The question, so that counsel can be thinking

about it, was “What initiated his participation

with the OSI?” ,

(The bailiff handed Appellate Exhibit XV and

the question from Lieutenant Piech to counsel

for both sides, and then to the military judge.)

Basically, that is the same question and I need

to talk to counsel about that. I will hold those

until we have another Article 39(a) Session, so

that we don’t take you out right now.

Airman Scheffer, you can return to your Seat.

Your Honor, I’m just curious, did you mark

Lieutenant Piech’s question as an Appellate

Exhibit?

I think I need to do that. It’s Appellate Exhibit

XIX. Defense counsel, you can call your next

witness.

IMC: Your Honor, we would call Mrs. Scheffer to the

stand.

4s 49

IN THE FIFTH JUDICIAL CIRCUIT . ing the admissibility of polygraph results

earlier before trial. That’s my recollec-

tion, sir. At this point we would renew

UNITED STATES that motion since the accused has testi-

“ fied.

MJ: Maybe I phrased it that way; I’m not sure I -

intended to. But, at any rate, the motion

AMN EDWARD G. SCHEFFER is denied.

F'R554-85-0300 DC: Yes, sir.

22 Transportation Squadron

March AFB, California xe ee

[Renewed Defense Motion Concerning

Polygraph Evidence — Record of Trial]

*e eK *

[316]

ARTICLE 39a) SESSION

(The Article 39(a) Session was called to

order at 1525 hours, 16 October 1992, with

all parties present when the court reces-

sed again present, except the members.)

MJ: This Article 39(a) Session will come to

order. Please be seated.

ATCII: _ All parties to the trial who were present

when the court recessed are again pres-

ent. The members are absent.

DC: Thank you, Your Honor. At this point, it’s

my recollection that you gave us just a

DEPARTMENT OF THE AIR FORCE

IN THE FIFTH JUDICIAL CIRCUIT

UNITED STATES

AMN EDWARD G. SCHEFFER

F'R554-85-0300

22 Transportation Squadron

March AFB, California

[Closing Arguments]

Record of Trial

** * * *

[339]

MJ: Captain Russell.

ATC I: Thank you, Your Honor.

Lieutenant Colonel Fullenkamp and members of the

court, several days ago we told you that the accused

was guilty in each and everyone of the offenses of

which he has been charged. When we laid out the

evidence, we said that we were going to present

evidence to you to show beyond a reasonable doubt

that the accused in this case committed all four of the

offenses of which he has been charged. We've done

that. What I want to do now is review the evidence

that you’ve heard, the testimony you’ve heard and the

documentary evidence that you have received in order

to facilitate your decision making in this process.

[340] Again, let’s start with Charge II, the wrongful

use of methamphetamine. You heard evidence and

testimony from four individuals regarding this meth

use.

First, you heard testimony from Special Agent

Shilaikis. Special Agent Shilaikis testified that on

the 6th of April, 1992, he asked the accused to consent

to a urinalysis. The accused said that he would do it,

but that he was unable to urinate on that particular

day—he only urinated once a day. So, Special Agent

Shilaikis said we will do it the next day. Special

Agent Shilaikis then testified that the accused said,

“Why don’t I go over to Robert Davis’ house tonight?”

Remember Robert Davis? This drug dealer. This

individual that he is so terrified of. Well, on the 6th

when he is submitting to a urinalysis, he says, “Why

don’t I go over to Robert Davis’ house?” So, this is

supposedly what happened. The next day, Special

Agent Shilaikis told you, when he testified on the

stand, that the accused called him and said, “I need to

ta... to you.” He comes over. He comes over and he is

animated, and says, “Where was I? Where was I?”

Special Agent Shilaikis doesn’t know what he is

talking about. So, the accused goes into his story

about gging over to Robert Davis’ house on the

evening of the 6th, of having some pizza and cokes.

Then he is driving home, returning to March Air

Force Base. So, the next thing he realizes, he is on

the side of the road. The car doors are open. He is

lying there. He wakes up and he doesn’t know how he

got there. He has no idea how he got there. This is

the story he gave to Special Agent Shilaikis. Again,

knowing that he would be submitting to a urine

sample that day. Special Agent Shilaikis told you

that he informed the accused that, again, he would

like to have him consent to a urinalysis, which the

accused did. Special Agent Shilaikis told you the

procedures he used in obtaining that urinalysis.

First, you have the documentary evidence that he

did consent to a urinalysis. You will have the urine

bottle that had the accused’s urine in it.

Special Agent Shilaikis, after signing the consent

form, had Special Agent West—the second individual

that you heard testify—act as an observer during the

urinalysis. You heard Special Agent West say that he

went with the accused, [341] with the bottle, to the

restroom, and watched the accused directly urinate

into the urine bottle. He sealed the lid on it, brought

it back, handed it to Special Agent Shilaikis who then

sealed it with a tamper resistant tape. Special Agent

West put his initials on it. Special Agent Shilaikis

put his initials on it. And the accused initialed the

bottle.

At that point, Special Agent Shilaikis placed the

bottle in a safe of which he and the DETCO com-

mander were the only ones with the combination. The

next day, he removed that bottle from the safe, with

the tape still intact—no tampering with the bottle—

and gave it to the third OSI agent you heard testify,

Special Agent Evans. .

Special Agent Evans then testified to the proce-

dures that he followed. That he annotated it in the

evidence log. You have that documentary evidence in

front of you. That he kept it in the evidence room,

where he and one other agent, Special Agent Riter,

had access to that room—nobody else had access to

that room. Special Agent Evans stated that he pack-

aged up the urine bottle on the 10th of April 1992. He

prepared it for shipping, but he knew it was too late to

ship it on that day. So, he returned it to the evidence

room. Then on the 13th of April 1992, he took the

evidence out of the evidence room, and shipped it off to

Brooks Air Force Base; the lab. He stated that it was

intact when he did it. The seals before he had pack-

aged it, the seals were stills intact. There was no

tampering with this bottle.

Chain of custody, here at March Air Force Base,

was very secure. Each individual who handled that

bottle testified. Each individual testified concerning

the procedure, the process that was used, and the

measures that were used to ensure that there was no

tampering with that bottle.

Next, you heard from Doctor Naresh Jain. Doctor

Jain testified concerning the chain of custody. He

testified concerning the procedures at Brooks Air

Force Base. He testified concerning checking the

package that arrived. If it’s damaged or broken they

are going to be discarded. Of opening up the outer

package, looking inside and checking each bottle,

making sure that that seal is intact. If that seal is

not intact, again, it is discarded. Doctor Jain, during

[342] his lengthy testimony, on numerous occasions,

said this chain of custody is tight. This chain of

custody is secure.

Now, Doctor Jain testified at length concerning the

process. There was a reason for that lengthy testi-

mony. That was, that although the process is not

infallible, it’s as close as you can get to being infalli-

ble. You heard that.

You heard the procedure of when the package ar-

rives. It goes into a secure room. When the urine

sample is going to be tested, a portion is poured out of

the bottle and that sample is tested. If that sample is

tested in the RIA, or radioimmunoassay, he testified

here on the stand that a second confirmatory RIA is

done. He said that’s unnecessary forensic toxicology,

but the Brooks Lab does that. So, there was a second

RIA test done. Again, the accused’s urine tested

positive for methamphetamine. On both of those

tests, Doctor Jain testified looking through the docu-

mentary evidence, Prosecution Exhibit 4, that the

chain of custody was strict. Tight. Secure. No prob-

lem. So, after the first two RIA tests, he, again, testi-

fied at length concerning the third test; the GC/MS

test. He testified at length to the procedures of that

test. Again, chain of custody, as you recall, tight. No

problem. Again, on the third test, each one being a

different sample from that bottle, the accused’s urine

tested positive for methamphetamine.

Members of the court, there is no doubt that the

urine that the accused submitted tested positive for

methamphetamine. There is no doubt that that sam-

ple came from his body. Chain of custody is secure.

Now, the judge gave you an instruction, and I just

want to read you part of it. It says, “If you find from

the evidence beyond a reasonable doubt that the

accused, did, in fact, ingest methamphetamine, you

may infer that the accused’s use was knowing and

conscious.” Then he stated, “That inference is not

required on your part, but you may do so.”

Members of the court, there is no doubt; in fact, we

have proved beyond a reasonable doubt that the

accused did, in fact, ingest methamphetamine. You

may infer from that that it was knowing and con-

scious. [343] But, let’s look again at what the accused

stated. Let’s look back on the 6th of April again. Let’s

look at his credibility and the probability of what he

said occurred occurring. Again, the 6th of April.

Special Agent Shilaikis asked for consent. Now, on

the stand the accused said that he did not consent to

the urinalysis on the 6th. Well, he is changing his

testimony. Special Agent Shilaikis has no reason to

get up here and lie. He told you that on the 6th he

asked the accused to submit to a urinalysis the next

day. He knew he was going to be tested. He has to

come up with a story.

Again, we have the story of going to Robert Davis’

home. The same Robert Davis that the accused, on

the stand, said “I went there constantly and there was

meth on the table.” He told you that he ate food there,

and he had some drinks. Well, why would Robert

Davis or anybody that was there sprinkle metham-

phetamine into his food or in his drink? Special Agent

Shilaikis testified concerning a controlled buy. A six-

teenth of an ounce of meth costs $80.00. Why would an

individual take meth and throw it away? Why would

he pull out his wallet, in essence throw away $80.00,

then not tell the accused. I mean, typically, if you are

going to use meth, it’s to get a kick out of it. If you

are going to use it with your friends, you’re going to

do it together and have a good time. But, somehow

some meth—throwing money away—was thrown into

his food or into his drink. He never tells it. Robert

Davis, on the 6th of April,—this is almost three

weeks before he is busted — he doesn’t know whether

the accused is involved in trying to get him. He has

no motive for trying to set up the accused. He doesn’t

know the accused is going to go in and submit a urine

sample the next day. Is he clairvoyant? He knows

that, “On the 24th of April they are going to come

bust me. So, I’m going to get the accused now.” No.

It makes no sense. He thinks you are gullible to buy

that story.

The accused also testified that he felt no -effects.

That the day before, on the 6th, he didn’t feel any-

thing. On the 5th he didn’t feel anything. He didn’t

feel a rush—a surge. The day before that, and the day

before that. But, Doctor Jain, when he was on the

stand during his testimony, told you with the reading

on those tests, he would have [344] felt something. If

he ingested methamphetamine, he would have felt

something. kh

What has he told us? Rébert Davis is a drug dealer.

On the 24th when they go in to search Robert Davis’

home, do they find the drugs, the guns and the other

things that Special Agent Shilaikis testified that the

accused had told him? No. They didn’t find anything.

Not a thing. Billy Fink. Pounds of drugs. Pounds.

We're talking about a big time dealer. Weapons.

When they search his home, did they find anything?

Nothing. The only evidence that we have of those two

being big time drug dealers is what the accused has

told the OSI, and what he has told you. There is no

independent evidence of that. Don’t buy his story.

There is one person in here who has reason to distort

the truth. It’s not Special Agent Shilaikis or any of

the other OSI agents, or Doctor Jain. He is sitting at

that table. He has reason to distort the truth.

What else did he tell us concerning his credibility?

We will discuss this further, but I want to discuss it

briefly now.

Trooper Steffen, when he was on the stand, what did

he testify to? That when he pulled the accused over,

the accused told him he was on leave. I’m going to

Indiana, turning around, and heading back to Califor-

nia. After Trooper Steffen informed him that, in fact,

he knew his status and that he had talked to the base,

the accused then says, “I guess you know I’m

AWOL.” Again, another rexson to lie. He lies. He is

a liar. He lies at every opportunity he gets and he has

no credibility. Don’t believe him. He knowingly used

methamphetamine, and he is guilty of Charge II.

Now, let’s look at Charge I, that was the second

offense that we discussed. Ms. Ruth Watson came in

here, and testified that on the 27th of March 1992, the

accused went into the Security Pacific Bank, on

Sunnymead Boulevard, and opened up an account. He

deposited $277.00 in that account. She testified that

going through the bank statement, which you have in

front of you, that he immediately withdrew money.

Then on the 30th of March, an empty deposit envelope

was placed in there stating that $250.00 was being

deposit-[345]ed. Empty envelope. Then more money

is taken out. Then on the 31st of March, the accused

calls the bank and talks to Ruth Watson. He said, “I

lost my ATM card. I lost my temporary checks.”

Remember the temporary checks that she discussed,

numbers 75 through 100? “I’ve lost my temporary

checks and my ATM card.” She says, “You've got to

close this account. This account has to be closed.” Is

she doing it to be vicious with the accused? No. She

is doing it to protect him. He is saying that he lost

his ATM card and his checks. She is going to protect

this guy and help him out—a young airman. What

happens the very next day? Look at the charge sheet.

Look at Charge I. Two checks appear the Ist of April,

the day after this phone call when he has lost all of his

temporary checks. Look at the numbers of those.

Temporary checks; two of them. Then on the 2nd of

April, another temporary check. On the 3rd, another.

He is a liar. He wrote a total of 17 checks. Ruth

Watson testified on this stand that after the initial

day on the 27th of March, he never made another

deposit. Now, she testified concerning that his ac-

count was restricted, but she also testified that if he

had come in to make a deposit, they would have taken

it. He didn’t go in and make a deposit. $277.00 is all

that was ever put into that account. He wrote 17

checks for over $3,000.00. Look at the account. He

knew at the time that he wrote those checks there

was no money in that account. He had the intent to

defraud. This wasn’t just a failure to maintain funds

after he had written a check. He knew at the time

that he was committing a crime. Ms. Watson, also

testified that he doesn’t have an account with a

different branch of Security Pacific. There are no

other accounts listed with Security Pacific. One

account, this one here. The account was officially

closed on the 16th of April 1992.

Now, Tech Sergeant Pangilinan came in here and

testified that he didn’t have sure pay going into this

account either. There was no money going into it,

aside from $277.00, initially, that was withdrawn.

He is guilty of Charge I. He wrote those 17 checks

with the intent to commit fraud. Look at his credibil-

ity. Look at his story, at what he told Ruth Watson.

She doesn’t have any reason to come in here and lie

about this individual. Again, one person had a reason

to lie. Over there.

[346] Now, let’s look at Charge III, specification 1.

That is a failure to go. Mr. Gutierrez came in here,

and said that on the 23rd of April 1992, the accused

failed to show at 7:00 o’clock in the morning, his duty

hours; that he waited. Then he called the First Ser-

geant, Master Sergeant Robinson. Master Sergeant

Robinson went over to the accused’s dorm room,

opened the door and found him in there asleep. He

woke him up. The accused told him, along with other

things, “Ah, I’m supposed to be at work.” Well, what

did Master Sergeant Robinson tell you? That the

previous day, 24 hours before, on the 22nd, he told the

accused, “You be at work tomorrow morning at 0700

hours, over at Building 429. Report to Mr. Gutier-

rez.” The accused knew where he was supposed to be,

and he dicn’t do it. Mr. Gutierrez, as well, told you he

had previously told the accused, “Report to me every

morning at 0700, here at Building 429.” He knew

where he was supposed to be, and he wasn’t there . We

don’t have to say anything more about that charge.

Guilty of specification 1 of Charge III.

With regard to specification 2, the last offense that

we proved. Again, let’s look at the evidence. Mr.

Gutierrez, on the stand, states that on the 29th of

April, the accused didn’t show up for work. So, we go

through the same procedure. Again, with him waiting

and calling Master Sergeant Robinson. This time,

Master Sergeant Robinson testified that he couldn’t

find him either. He wasn’t around. Mr. Gutierrez

never heard a word from him from that time until—

well, he testified yesterday that that was the first

time he has seen the accused since his disappearance.

The accused never contacted him to tell him that he

was in trouble or that he needed help. Master

Sergeant Robinson testified he couldn’t find him.

Again, the accused never contacted him or told him he

needed help. In fact, the next time that we hear

anything of the accused is on the 13th of May, when

the Iowa Highway Patrol calls and says that they

have Airman Scheffer.

Trooper Steffen testified that he pulled him over,

and that the accused told him, again, as I mentioned

earlier, “I’m on leave from the Air Force. I’m going

to Indiana, and back home to California.” It was after

he knew it was up, that he had been caught when he

was sitting in jail, that he tells [347] him “I guess you

know I’m AWOL.” He lies every opportunity he gets.

There has been evidence in this case that the

accused was running because he was fearful. He was

fearful that people were out to get him because of his

work with the OSI. Again, stop and look at that

evidence; his belief that people were out to get him.

Because if you believe that, in fact, he was under

duress and had to run, you have to return a finding of

not guilty. Let’s look at that for a minute. The only

person who has brought up any of those facts is the

accused. He is the one that says “Billy Fink is so

bad.” He is the one that says “Robert Davis is so

bad.” You know these two horrendous drug dealers.

They don’t find anything at their places when they

search them.

Let’s go to the 24th of April 1992, the bust on

Robert Davis’ home. Special Agent Shilaikis, again

on the stand, told you that, in fact, on that evening he

received a phone call from the accused. Was he

scared? No. Was he upset? Yes. The words of Spe-

cial Agent Shilaikis on the stand, he said, “Airman

Scheffer was pissed off.” He wanted to be in on it. He

wasn’t scared. No fear at all. Special Agent Shilaikis

has no reason to get up here and lie to you. He was

mad. He wasn’t scared.

Now, we've heard testimony from the accused’s

parents. The father said that he did receive a phone

call from his son, and that he told him that he had to

get out of here. But, he doesn’t remember when it

happened. In fact, he told you it could have been

sometime in May. It wasn’t necessarily on the 30th.

Now, Mrs. Scheffer has testified that it was on the

30th of April that th. accused came to her. That she

saw his hand, and that his hand was bleeding. Then

she saw some glass in the back of the truck. She

doesn’t know if those windows were shot out. She

doesn’t know if he took his fist and popped the window.

He had a bloody hand.

Again, the only evidence is coming from him and his

credibility. His lack of credibility.

One other point, on the 30th he has to run. Where

was he on the 29th? Mr. Gutierrez and Master Ser-

geant Robinson told you it was the 29th that he didn’t

show up for work. He was [348] officially put on

AWOL status on the 30th—had to wait 24 hours.

Where was he on the 29th? He lacks credibility.

There is only person in here who has a reason to

lie. Again, look at the Robert Davis story. Armed to

the teeth in drugs. Nothing. He did do one controlled

buy from him for recreational use for $80.00. That

was it. But, when they do the search of Robert Davis’

home—nothing. Billy Fink’s home—nothing. He

tells Ruth Watson, “I’ve lost all of my temporary

checks.” Again, a lie, because you have in front of you

that he had four of them, at least. He wrote four

checks, off of those temporary checks, after he told

her he had lost them all. Another lie. He told

Trooper Steffen, “I’m on leave.” Another lie.

This individual has no credibility. The only way

you can find him not guilty of these offenses, is if you

believe his story. If you are to believe that, this time

he is telling the truth. Maybe he lied in the past.

But, he’s telling us the truth now. That’s the only

way.

He knowingly and wrongfully used metham-

phetamine. He wrote those checks. When he wrote

them, he knew he had no money in his account. He

was defrauding those individuals. Seventeen different

checks from an account with no money in it. He failed

to go. It’s obvious. And, he went AWOL not under

any duress, but because he didn’t want to be in the Air

Force any more. On that last charge, think about it.

What safer place to be than March Air Force Base. If

you are worried about individuals off-base, get on base

and stay on base. He is lying to you. He is guilty of

all charges. We ask that you return findings of guilty

on each and every charge. Thank you.

MJ: Captain Williams, given trial counsel’s argu-

ment, that discussion that we had yesterday regard-

ing your argument on duress no longer applies. In

other words, the limit I put on you no longer applies.

IMC: Colonel Fullenkamp and members of the court,

let me try and correct a misstatement of the law that

the prosecution just gave you there. The judge told

you what the law is. Prosecution says that the only

way that you can find the accused not guilty is if you

believe his story. That is absolutely [349] wrong.

The law is that if the government has not met its

burden of proving each and every element of every

offense beyond a reasonable doubt, then you have to

find him not guilty.

Now, earlier in the trial the judge emphasized the

fact that the defense does not have to put on any

evidence, because the burden of proof is on the

prosecution, throughout the entire trial—to each and

every element of the offense, beyond a reasonable

doubt, to prove that Airman Scheffer committed these

crimes. The judge, in fact, told you that we did not

have to put on any evidence. We didn’t have to dispute

the urinalysis testing, for example. The judge has

told you that, in fact, the burden at no time shifts

from the prosecution to Airman Scheffer. And the

judge told you that if the prosecution does not prove

all of the necessary elements of the offense beyond a

reasonable doubt, then Airman Scheffer must be

acquitted.

So, let’s look at Charge I. Focus on the very first

element that the judge read to you concerning that

charge. In this case, the prosecution failed to put on

any evidence at all of where these checks were

written. He is accused of writing them in Moreno

Valley. There is no evidence here. Look at where the

check is written—national chains. Look at the time

that they are written. After the 28th of April, the

government says they don’t know where he was. The

13th of May, he ends up in Iowa. So, we know that to

get from California to Iowa you are not magicaliy

transported there in your car. You have to go

through different States—Arizona, Colorado, Kansas.

No evidence.

Let’s look for a little bit at Charges II and III,

because the facts are kind of interrelated. The OSI

asked Airman Scheffer to come work for them as a

source. To work for the OSI against drug dealers.

When the OSI talked to him about that, Airman

Scheffer went and talked to his dad.

His dad got on the stand and told you that he told

his son, “This is not a good idea. You don’t have any

real marketable skills to offer these guys. If things

turn out good for them, it will be good for you. If

things go bad then they will just throw you away.

They will discard you.” That is what he knew from

his dad up front. A little bit of a [350] prophecy there.

Now, despite his dad’s advice, he went ahead and

worked for the OSI. He talked to them. They told him

what they wanted him to do. He was willing to do it.

The OSI told Airman Scheffer what the procedures

they would use would be. He was willing to follow

those procedures. Now, why do they have those

procedures? Agent Shilaikis said, “Because the OSI

was absolutely concerned about the safety of their

sources.” Why? Because he said on the stand that

sources had been burned in the past. They told

Airman Scheffer up front that they would be asking

him periodically for consensual urinalysis. He under-

stood that. No problems. He was told by the OSI that

it would help his credibility as a source if, in fact, he

took these consensual urinalyses as asked. He under-

stood that. It made a lot of sense. No problems. Air-

man Scheffer had every reason to remain clean and to

help the OSI, and to get the help from them that they

kind of indicated that he would get in return.

Now, the first urinalysis he took in March, before

they started working him against these drug dealers,

turned up negative. The second urinalysis, the one in

April he took after he had been working for the OSI

against these drug dealers for about a month, suppos-

edly turned up positive.

Do you remember the OSI agents telling you about

the consensual urinalysis that Airman Scheffer took?

Do you remember Special Agent Shilaikis on the

stand, saying that as well as consensual urinalysis,

there is a probable cause urinalysis, and there is a

command directed urinalysis? But, the one that

Airman Scheffer took was a consensual urinalysis.

The OSI agents explained the consensual urinalysis

form. They explained the procedures. They showed

you the form that Airman Scheffer signed saying he

consented. The consent form that Airman Scheffer

was willing to sign. The consent form that Airman

Scheffer absolutely did not have to sign. And the

consent form that someone who knew drugs were in

their system, and the urinalysis was going to come up

positive, would not have signed it.

Now, the prosecution has a little problem with this

litigation package. They went to great lengths to tell

you about the consensual urinalysis; but on page 2 of

the litigation [351] report it says this was a probable

cause type of test. All right, that aside. Let’s look at

whether the prosecution has proved beyond a reason-

able doubt that Airman Scheffer knowingly ingested

a or that any ingestion was wrong-

ul.

Now, the OSI, before they could get Airman

Scheffer to buy drugs from these people, had to have

him re-establish relationships with them. He spent

time with them, and when he spent time with them, he

testified,—sometimes he spent weekends, evenings

and ate meals with them. A lot of times, either one of

the drug dealers, or girlfriends or whoever, some-

times Airman Scheffer would go out and get some fast

food,—pizza, Mexican food, something to drink—bring

it back and they would eat wherever they were at—

Davis’ house. At the time he was working with the

OSI against these drug dealers, methamphetamine

was out. Sometimes when he was eating there, he

would have to get up and go to the bathroom for what-

ever reason; he wasn’t always attending his food or

the large 44 ounce soda that he got. Doctor Jain

testified that methamphetamine is easily soluble—it

will dissolve—in soda. Agent Shilaikis testified that

he heard of people having their drinks spiked with

illegal drugs. Now, the government said that they

want you to think that you are gullible enough to buy

his story about someone spiking their drinks. Well,

you heard from the government’s own witness, Spe-

cial Agent Shilaikis, that he knows of people spiking

other peoples drinks with illegal drugs. So, their own

witness told you that. Now, the prosecution also

wants you to believe that there is no one in the world,

other than Airman Scheffer, who could have had

access to the methamphetamine that was used to

spike his food or drink. But, that’s not true. They

want you to think that there is no way you should

believe Airman Scheffer on anything. Of course, the

OSI believed him. They believed what he said was

true about Billy Fink. They had him work against

Billy Fink. He told them that Billy Fink was a drug

dealer. They believed him. How do we know that they

believed him? They told him, “We want you to do a

controlled buy. We will give you some money. We

want you to go to Fink’s house. We want you to buy

drugs. Come back.” So, they did that. They searched

him first. They searched his car. Why? To make

sure that he didn’t have any drugs in his car, so if this

went to trial, Davis wouldn’t be able to say, “Hey, hey,

[352] Scheffer brought the drugs to me.” Absolutely

out of the question. Ruled out. They gave him 100

bucks. They followed him to Davis’ apartment. He

went up to Davis’ apartment. He bought the drugs.

He came back and gave OSI a sixteenth of an ounce of

methamphetamine. Now, the prosecution wants you

to believe that the methamphetamine fairy came down

and gave Airman Scheffer these drugs. Because it

certainly couldn’t have come from innocent Mr.

Davis, who the prosecution would really like you to

believe is not really a drug dealer, but some figment of

Airman Scheffer’s imagination. But, the OSI believed

him, and they got their drugs from him. They knew

that Davis was a drug dealer. And the prosecution

would also like you to believe that Airman Scheffer

wasn’t being true when he told the OSI about Billy

Fink, and that Billy Fink was a drug dealer. Again,

drug dealing Billy Fink, according to the prosecution,

must be another figment of Airman Scheffer’s

imagination. However, the OSI came on and testified

that they positively identified this Billy Fink as being

out of jail, on felony probation. For what? Child

Molestation? No. For methamphetamine distribu-

tion. He was a meth dealer. Prosecution tried to say

that the only evidence that Billy Fink was a meth

dealer came from Airman Scheffer’s own mouth.

That’s not true. The OSI said, “Yup, we knew it.”

The West End County Task Force knew it. Billy

Fink, convicted methamphetamine dealer, out on

felony probation.

Prosecution also wants you to believe that these

drug dealers are potentially armed and dangerous, is

another figment of Airman Scheffer’s imagination.

Well, the West End County Task Force knew better.

They work with drug dealers everyday. They work

on busting drug dealers. They knew that these guys

are dangerous characters. They knew that they are

frequently armed and dangerous. How do we know

they knew that? Well, when the West End County

Task Force, along with the OSI, went and busted

Davis’ and Fink’s house, did they just walk in there

and say “Hi, here we are, we'd like to search your

house?” No. They all had bulletproof vests on. There

were between five and ten of them. They are only

expecting one guy in there. Between five and ten

officers of the West End County Task Force, with

bulletproof vests, armed to the hilt, guns out of their

holsters, ready to go in. Why? It certainly wasn’t

because they thought this was a figment of someone’s

imagination. They knew that [353] drug dealers are

frequently armed and dangerous characters. The OSI

also knew that drug dealers are frequently armed and

dangerous characters. Anybody who watches TV,

evening news, here in Southern California, knows

that drug dealers are frequently armed and dangerous

characters. It appears that the prosecution are the

only people in the courtroom that don’t know that

drug dealers are frequently armed and dangerous

characters. We also know from watching the news,

virtually every night, that drug dealers and gang

members are shooting each other. Shooting each

other. Sometimes they hit the people they intend.

Sometimes they shoot innocent people.

Now, Agent Shilaikis testified that he didn’t tell

Airman Scheffer about the raid. And that later that

night, about 11:00 o’clock at night, he got a call from

Airman Scheffer who was upset. He was upset

because he didn’t know what had happened. He ran

into Robert Davis. What did Davis say? He said,

“Scheffer, you so and so, the cops raided my house,

and I think that you finked on me.” Davis thought

that Airman Scheffer~had snitched on him to the

police. He had. He was right. Armed and dangerous

drug dealers, who suspect that someone has ratted

them out to the cops, are exactly the kind of people

who have the will, and are exactly the kind of people

that want to get revenge and can get revenge. They

are willing to use their weapons on people who snitch

on them. That’s what happened.

Now, the OSI, supposedly being professional law

enforcement officers, after realizing that Airman

Scheffer’s life was in danger, that the folks—the drug

dealers—that he was working against, thought he

was the one who had snitched out on them, should

have said, “Listen, it’s time to stop. Stop-this- epera-

tion. Don’t talk to Davis anymore. Don’t contact him.

Stay here on the base. Stay away from these guys.

They are dangerous.” Did they do that? No. Agent

Shilaikis said, “We will try and have him work

against them later.” What happened? A week after

the raid, Airman Scheffer showed up at his mom’s

house. He was scared. He was agitated. He was

upset. Mrs. Scheffer, who has absolutely no reason to

lie, came in and said, “My son’s hand was cut and

bleeding.” She noticed it. She said, “What’s wrong?

He said that he had gotten cut on his hands taking

broken windows out of his truck, because they had

just been [354] blown out. Somebody had just tried to

kill him. She looked in the back of his pick-up bed, and

there was the cracked window. This was no figment

of Mrs. Scheffer’s imagination. Airman Scheffer, at

that time, told his mom, “I got to get out of town.

People are shooting at me. I’m not going to stick

around here.” Later that evening,—and the prosecu-

tion wants to quibble with Mr. Scheffer’s memory of

the day, but I asked and he clarified that he, in fact,

talked to his son later in the evening that his windows

got shot out. So, he talked to him on that same day.

He was upset. He was almost hysterical. His dad

said, “Normally, I can calm him down, but I couldn’t

calm him down that night.” He told his dad, “I got to

get out of town. Somebody is trying to kill me.”. That

was Airman Scheffer’s mind when he left the local

area to find a safe place to stay. He feared for his life.

He fled for safety.

Now, the government wants to make it a big case

out of the fact that when he was stopped, Airman

Scheffer didn’t tell Trooper Steffen the truth. Well,

he was faced with a little bit of a quandary there. Do I

tell this police officer the truth, that I’m not on leave,

and have him take me back to Southern California,

where people are trying to kill me; or do I tell a little

fib and hope that he will let me go on my way to

safety? His was an easy and logical choice to make.

He made it.

Members of the court, in conclusion we would argue

that, in fact, the government has not met its burden.

They have not proved to you beyond a reasonable

doubt all the evidence necessary to support each and

every element of Charge I, Charge II or the AWOL.

As a result, a finding of not guilty should be returned

for these charges.

Now, the prosecution gets another chance to come

and talk to you. This is our last chance. I would ask

you to consider, when you listen to the prosecution’s

argument, what we would say in response to that

argument, in your deliberations. Thank you for your

time.

MJ: Captain Russell.

ATC I: Thank you, Your Honor.

(355) First of all, I want to clear up the miscon-

ception of what I said; that the only way you can find

him not guilty is by believing his story. I in no way

meant to place the burden of proof on the defense. To

- defense and to Airman Scheffer, I apologize for

that.

But, the facts are proven beyond a reasonable doubt.

Let’s go back through these offenses one last time.

The meth use. We didn’t say that a drink couldn’t

be spiked, or that the food can’t be spiked. We didn’t

say that. Yes, it’s possible, but is it probable? Are you

going to throw money away? Pull that billfold out,

throw that money in there for no apparent reason.

But, more than that, is that the accused told you he

knows what the effects of methamphetamine are. He

told you on the stand that he never felt it. That’s the

improbable. That’s the impossible and implausible

part of this; is that he never felt it. He knows what

methamphetamine feels like. He is telling you he

never felt it. Again, the defense brought it up that he

consented to this urinalysis. He sure did. He con-

sented. And, on the 6th of April, that evening, and on

the morning of the 7th, he worked like a dog to come

up with a story to cover his tail. That’s what he did.

What did he tell you? Just remember that. Just keep

remembering that story; that hokey story that he

related to you. It doesn’t even make sense. You can’t

become unconscious with meth use, and that’s what

he is telling you happened. Don’t believe it. He felt

the effects, because he knowingly used it.

Again, the checks. You can infer from looking at

the checks, up to the 30th of April, that he was in

Moreno Valley. As far as the other checks, we don’t

know. That’s for you to decide—those other three

checks. We have no evidence from the 30th of April

until the 13th of May that he wasn’t in Moreno

Valley. All we know is that on the 30th of April he

was here, and on the 13th of May he was found in Iowa.

You can infer that. Again, look at the dates of those

checks. He wrote them all after he said he lost his

temporary checks. He wrote them after there was no

money in his account. When he started on the Ist of

April, he knew there was no money in that account.

He had the intent to defraud all of those different

individuals and companies. He is guilty of the first

charge.

[356] Failure to go, there is no question on that.

Let’s go back to the AWOL for a moment. It still

goes back to credibility.

We're not trying to tell you that Robert Davis and

Billy Fink don’t use drugs. And the defense got up

here and said the West End County Task Force went

in armed through the teeth, bulletproof jackets, weap-

ons drawn. Why did they do that? Because of what the

accused had told the OSI. He is the one that said they

were armed to the teeth, had pounds of drugs. The

OSI is not supposed to believe him at that point? The

West End County Task Force is not going to believe

the OSI? The only reason they went in that way is

because of what the accused had told them, based on

his information. Again, what did they find? Nothing.

Yes, he did one buy. A recreational use from Robert

Davis. Are we saying those two are clean? No. Are

they armed and dangerous? We have no evidence of

that whatsoever.

On the 24th of April 1992, after this bust, if the

accused was so scared and so frightened, thought his

life was in peril, why didn’t he tell the OSI, “I’m out of

here?” He wasn’t working full time for the OSI; he

was in transportaticn. But, why didn’t he tell Special

Agent Shilaikie or anyone else over there, “That’s it,

I’m through, -hey’re going to get me.?” It never

happened. He is a big boy. He could have walked away

from this. Trying to say that the OSI was out to burn

this individual is wrong. There is no evidence of that

whatsoever. They weren’t leaving him out there

hanging in the wind. He never said anything to the

OSI about being scared, or that his life was in danger.

That’s coming from the accused.

As for the testimony of the parents, every parent

wants to believe that their child is a good child—each

parent. Consider the fact that they are his parents.

But, again, consider that neither one of them saw

anyone shoot out the windows. The father didn’t even

see the truck. He talked to his son on the phone. The

mother saw the truck. She saw a bloody hand, as well.

She didn’t see any bullets fired. All she saw was a

bloody hand and some broken glass. Nothing to say,

that it happened the way he said it happened.

[357] Again, the burden of proof is on the gov-

ernment. The government has proven each and every

one of these offenses beyond a reasonable doubt. The

only verdict that you can come back with is a finding

of guilty on each charge and each specification.

Thank you.

x***& &

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.