Petition for Writ of Certiorari — United States v. Mobley

. Supreme Court, U.S.

y

961134 JAN 161997

No.

OFFive UF HE CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1996

UNITED STATES OF AMERICA, PETITIONER

Vv.

CEDRIC W. MOBLEY, CHESTER NASH, JR., and

CHAD E, LYNN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20539-0001

MICHAEL J, BRESLIN 202) 514-2217

Lt. Colonel, USAF

Appellate Government

Division

Bolling Air Force Base

Washington, D.C. 20332

a

QUESTION PRESENTED

Whether Military Rule of Evidence 707, which

provides that evidence of a polygraph examination is

not admissible in court-martial proceedings, is an

unconstitutional abridgment of military defendants’

right to present a defense.

(I)

TABLE OF CONTENTS

Page

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Rule and constitutional provisions involved .................. 2

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Reasons for granting the petition ....... NL Sn SORE EO A Cae -

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TABLE OF AUTHORITIES

Cases:

United States v. Gipson, 24 M.J. 246 (C.M.A.

aN a a a 3,4

United States v. Scheffer, 44 M.J. 442 (C.A.A.F.

1996), petition for cert. pending, No. - ——........ 5, 6,7

Constitution, statutes and rules:

U.S. Const. :

SACS RT SES tae SIO Mis 2

REECE ete REE STs SER he Plah Fa oh ME 2,8

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Art. 36(a), 10 U.S.C. 886 (a) —......0oe 4

EI OTS TIIUIE coi ccccocecinicsscondactiedcsesanestusesiia 8

eg RR ee oi . 67,8

I RT I ER, I ct ci ciadcndecdnsibendsiesbscediaoacice 8

Rules—Continued : Page

Military Rules of Evidence:

BUI WD ciiiniteucininsidcieibladaldnciesidicteapiddbucinstetveehcabhemacoale 4

RMSE TAE Coe ies Meson Ne Sig tey Fe 2, 5, 6, 7,8

Miscellaneous:

Exec. Order No. 12,767, 3 C.F.R. 334 (1991

OTD seccisiciasiensentaneinnttiesctepseiieiibtejionsieiiealiataieaialiatiaasiliesiiidiniian 4

1 P. Giannelli & E. Imwinkelried, Scientific Evi-

GE SE GE, NE ice ticenedeciecercnaavecpeomdaciectoers 3

C. Honts & B. Quick, The Polygraph in 1995:

Progress in Science and the Law, 71 N.D. L.

| i. RRR te ee eee ear dole ee 3

Manual for Courts-Martial, United States (1995) .. 5

Iu the Suprenwe Court of the United States

OCTOBER TERM, 1996

No.

UNITED STATES OF AMERICA, PETITIONER

v.

CEDRIC W. MOBLEY, CHESTER NASH, JR., and

CHAD E. LYNN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the

United States, petitions for a writ of certiorari to

review the judgments of the United States Court of

Appeals for the Armed Forces in these cases.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces in Mobley (App., infra, la-5a)

is reported at 44 M.J. 453. The opinion of the United

States Court of Appeals for the Armed Forces in

Nash (App., infra, 6a-10a) is reported at 44 M.J.

456. The opinion of the United States Court of

Appeals for the Armed Forces in Lynn (App., infra,

(1)

2

25a-29a) is not yet reported. The opinions of the

United States Air Force Court of Criminal Appeals in

Mobley (App., infra, lla-14a), Nash (App., infra,

15a-24a), and Lynn (App., infra, 30a-38a) are

unreported.

JURISDICTION

The judgments of the court of appeals in Mobley

and Nash were entered on September 18, 1996. By

order dated December 10, 1996, Chief Justice Rehn-

quist extended the time within which to file a petition

for a writ of certiorari in those cases to and including

January 16, 1997. The judgment of the court of

appeals in Lynn was entered on October 10, 1996. By

order dated December 26, 1996, Chief Justice Rehn-

quist extended the time within which to file a peti-

tion for a writ of certiorari in that case to and

including February 7, 1997. The jurisdiction of this

Court is invoked under 28 U.S.C. 1259(3).

RULE AND

CONSTITUTIONAL PROVISIONS INVOLVED

Military Rule of Evidence 707 provides:

(a) Notwithstanding any other provision of law,

the results of a polygraph examination, the opin-

ion of a polygraph examiner, or any reference to

an offer to take, failure to take, or taking of a

polygraph examination, shall not be admitted

into evidence.

(b) Nothing in this section is intended to ex-

clude from evidence statements made during a

polygraph examination which are otherwise ad-

missible.

The Fifth and Sixth Amendments to the United

States Constitution are reprinted at App., infra,

39a-40a.

3

STATEMENT

1. These cases involve the constitutional validity

of a rule excluding from court-martial proceedings in

the armed forces any evidence of a polygraph exam-

ination. In broad terms, a polygraph examination is

a credibility assessment; it is based on an expert

examiner’s interpretation of physiological responses

that are controlled by the subject’s autonomous nervy-

ous system. After a preliminary interview with the

subject, the examiner asks a number of questions

while measuring the subject’s relative blood pressure

(obtained from an inflated cuff on the upper arm)

and other indications of blood flow, his “galvanic skin

response” (e.g., palmar sweating), and his respira-

tion (obtained from sensors placed on the subject’s

chest or abdomen). The questions asked in most tests

ordinary fall into three broad categories: direct accus-

atory questions concerning the matter under investi-

gation, irrelevant or neutral questions, and more

general (so-called “control”) questions concerning

whether the subject has engaged in wrongdoing. The

examiner forms an opinion with respect to the sub-

ject’s truthfulness by comparing the subject’s physio-

logical reactions to each set of questions. See gener-

ally 1 P. Giannelli & E. Imwinkelried, Scientific Evi-

dence 219-222 (2d ed. 1993); C. Honts & B. Quick,

The Polygraph in 1995: Progress in Science and the

Law, 71 N.D. L. Rev. 987, 989-993 (1995).

In United States v. Gipson, 24 M.J. 246 (1987),

the Court of Military Appeals (now the Court of

Appeals for the Armed Forces) concluded that poly-

graph techniques had reached a sufficient degree of

reliability that evidence of a polygraph examination

should not be routinely excluded from court-martial

4

proceedings under Military Rule of Evidence 702."

The court noted that “[i]f anything is clear, it is

that the battle over polygraph reliability will con-

tinue to rage,” but it concluded that “until the

balance of opinion shifts decisively in one direction

or the other, the latest developments * * * should be

marshaled at the trial level.” 24 M.J. at 253. Accord-

ingly, the court held that a serviceman who testifies

at his court-martial trial is entitled to lay a founda-

tion showing the scientific basis for polygraph results

consistent with his exculpatory testimony. /d. at

252-253.

On June 27, 1991, “[by] the authority vested

in [him] as President by the Constitution of the

United States and by chapter 47 of title 10 of the

United States Code [i.e., the Uniform Code of Mili-

tary Justice (UCMJ)],” the President responded to

Gipson by promulgating Military Rule of Evidence

707.° See Exec. Order No. 12,767, 3 C.F.R. 334, 339-

340 (1991 comp.). The drafters’ commentary that

accompanied the rule explained its adoption by refer-

ence to several policies:

' Military Rule of Evidence 702, like its counterpart in the

Federal Rules of Evidence, provides that “[i]f scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the

form of an opinion or otherwise.”

* Article 36(a) of the UCMJ, 10 U.S.C. 836(a), provides

that “[p]retrial, trial, and post-trial procedures, including

modes of proof * * * may be prescribed by the President by

regulations which shall, so far as he considers practicable,

apply the principles of law and the rules of evidence generally

recognized in the trial of criminal cases in the United States

district courts.”

5

There is a real danger that court members will

be misled by polygraph evidence that “is likely

to be shrouded with an aura of near-infallibility.”

United States v. Alexander, 526 F.2d 161, 168-

169 (8th Cir. 1975). * * * There is also a danger

of confusion of the issues, especially when con-

flicting polygraph evidence diverts the [court-

martial] members’ attention from a determina-

tion of guilt or innocence to a judgment of the

validity and limitations of the polygraphs. * * *

Polygraph evidence also can result in a sub-

stantial waste of time when the collateral issues

regarding the reliability of the particular test

and qualifications of the specific polygraph ex-

aminer must be litigated in every case. _Poly-

graph evidence places a burden on the adminis-

tration of justice that outweighs the probative

value of the evidence.

See Manual for Courts-Martial, United States A22-

48 (1995). Those considerations, the drafters stated,

warrant “a bright-line rule that polygraph evidence

is not admissible by any party to a court-martial.”

Ibid.

On September 18, 1996, in United States v.

Scheffer, 44 M.J. 442, the Court of Appeals for the

Armed Forces held that Rule 707 violates the Sixth

Amendment, in cases in which the accused wishes to

introduce polygraph results consistent with his excul-

patory testimony, because the rule compels the mili-

tary judge to exclude relevant, material, and favor-

able evidence offered by the accused. 44 M.J. at

445-446.

2. This petition involves three cases in which the

accuseds were convicted of various offenses after gen-

eral courts-martial. After the findings and sentence

6

were affirmed by the Air Force Court of Criminal

Appeals, the United States Court of Appeals for the

Armed Forces returned the records to the respective

convening authorities for further proceedings in ac-

cordance with Scheffer.

a. In Mobley, respondent was charged with using

and possessing cocaine, in violation of Article 112a,

UCMJ, 10 U.S.C. 912a. See App., infra, la-2a. At

trial, respondent claimed that he did not recall ingest-

ing cocaine and sought to rely on the testimony of

a private polygraph examiner, who had examined re-

spondent concerning the drug charges. Relying on

Rule 707, the military judge declined to permit re-

spondent to lay a foundation for the admission of the

polygraph evidence; the military judge also rejected

respondent’s claim that “Rule 707 is unconstitu-

tional.” App., infra, 3a. Respondent was convicted

on one specification of wrongfully using cocaine. He

was acquitted on a second specification of using co-

caine and one specification of possessing cocaine. He

was sentenced to a bad-conduct discharge, confinement

and partial forfeitures of pay for 12 months, and

reduction to the lowest enlisted grade. Jd. at la-2a.

The Air Force Court of Crimina! Appeals affirmed

(App., infra, lla-l14a), but the Court of Appeals for

the Armed Forces remanded for further proceedings

(id. at la-5ba). Relying on its decision in Scheffer,

supra, the Court of Appeals for the Armed Forces

held “that the military judge erred by applying a

per se exclusionary rule to [respondent’s] proffered

evidence,” because respondent was “entitled to offer

evidence of the scientific theory underlying polygraph

evidence and application of that theory to” him at an

appropriate hearing. App., infra, 4a. Judges Sullivan

and Crawford dissented. Id. at 5a.

7

b. In Nash, respondent was charged with using

cocaine, in violation of Article 112a, UCMJ, 10 U.S.C.

912a. See App., infra, 6a. Before trial, respondent

underwent two polygraph examinations. The first

was conducted by a private examiner who concluded

that respondent indicated no deception; the second

one was administered by the Air Force Office of

Special Investigations, and it reached the opposite

conclusion. Jd. at 7a. Relying on Rule 707 and on

the conflicting nature of the available polygraph evi-

dence, the military judge ruled that neither the de-

fense nor the government would be permitted to

present such evidence. App., infra, Ta-8a. Respond-

ent testified at trial that he did not know why his

urine tested positive for cocaine. /d. at 8a. He was

convicted and sentenced to a bad-conduct discharge,

confinement for three months, and reduction to the

lowest enlisted grade. Jd. at 6a.

The Air Force Court of Criminal Appeals affirmed

(App., infra, 15a-24a), but the Court of Appeals for

the Armed Forces set aside that ruling (id. at 6a-

10a). Relying on its decision in Scheffer, supra, the

Court of Appeals for the Armed Forces held that it

was error for the military judge to rely “on the per se

exclusion under Mil. R. Evid. 707.” App., infra, 9a.

The court also concluded that the military judge erred

to the extent he relied on the anticipated conflict be-

tween experts in respondent’s case. Jbid. The court

noted that “[i]n other areas of ‘soft science’ such as

mental responsibility, conflicts among experts are

common.” Jbid. The court remanded for a hearing

at which respondent will be given the opportunity to

lay a foundation for his polygraph evidence. /d. at

10a. Judges Sullivan and Crawford dissented. Ibid.

8

ce. In Lynn, respondent was charged with wrong-

fully using marijuana, conspiring to commit larceny,

and larceny, in violation of Articles 112a, 80, and 121,

UCMJ, 10 U.S.C. 912a, 880, and 921. App., infra,

25a. Before trial, respondent submitted to a poly-

graph examination by a private examiner, who con-

cluded that respondent indicated no deception when

denying his involvement in response to relevant ques-

tions about the fraud and drug allegations. Jd. at

26a-27a. Relying on Rule 707, the military judge

ruled that polygraph evidence inadmissible. App.,

infra, 28a. Respondent was convicted, and sentenced

to a bad-conduct discharge, confinement for 12

months, total forfeitures, and reduction to the lowest

enlisted grade. Jd. at 25a-26a.

The Air Force Court of Criminal Appeals affirmed

(App., infra, 30a-38a), but, citing its decisions in

Mobley and Nash, supra, the United States Court of

Appeals for the Armed Forces remanded for a hear-

ing at which respondent will be given “an opportunity

to lay a foundation for admission of his polygraph

evidence.” Jd. at 29a. Judges Sullivan and Crawford

dissented. Ibid.

REASONS FOR GRANTING THE PETITION

These cases present the same issue as United States

v. Scheffer, in which we filed a petition for a writ of

certiorari on January 16, 1997. In these cases, as in

Scheffer, the Court of Appeals for the Armed Forces

concluded that Military Rule of Evidence 707 violates

the Sixth Amendment right of a testifying service-

man to present a defense at his court-martial. Be-

cause this Court’s disposition of our petition in

Scheffer will govern the proper resolution of these

eee .

ie ee

ewe

9

cases, these cases should be held pending the Court’s

consideration and disposition of Scheffer.*

CONCLUSION

The petition for a writ of certiorari should be held

pending the Court’s consideration and disposition of

United States vy. Scheffer (filed Jan. 16, 1997), and

then disposed of accordingly.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

MICHAEL J. BRESLIN

Lt. Colonel, USAF

JANUARY 1997

* We have provided counsel for respondents with a copy of

the government’s certiorari petition in Scheffer.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

No. 95-0758

Crim. App. No. 30881

UNITED STATES, APPELLEE

Vv.

CEDRIC W. MOBLEY, Sergeant

U.S. Air Force, APPELLANT

Argued May 8, 1996

Decided Sep. 18, 1996

OPINION OF THE COURT

GIERKE, Judge:

A general court-martial composed of officer mem-

bers at Griffiss Air Force Base, New York, convicted

appellant contrary to his pleas, of wrongfully using

cocaine, in violation of Article 112a, Uniform Code

of Military Justice, 10 USC §912a. They acquitted

appellant of a second specification of wrongfully using

cocaine and one specification of wrongfully possessing

la

2a

cocaine. The approved sentence provides for a bad-

conduct discharge, confinement and partial forfeitures

of pay for 12 months, and reduction to the lowest en-

listed grade. The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED

IN HIS DENIAL OF DEFENSE’S REQUEST

TO ALLOW THE TESTIMONY OF A POLY-

GRAPH EXPERT ON THE RESULTS OF

THE ACCUSED’S PRIOR POLYGRAPHS.

We hold that the military judge erred by appiying

a per se ruling excluding polygraph evidence.

Before entry of pleas, appellant asked the military

judge to order production and employment of Dr.

Frank Sack, Ph.D. a private polygraph examiner.

Defense counsel proffered evidence that Dr. Sack had

administered three polygraph examinations to appel-

lant, where appellant denied knowing ingestion of

cocaine at the times and places charged. The defense

proffer included a narrative description of the poly-

graph examinations, a resume reciting Dr. Sack’s

qualifications, and the report of examination, complete

with charts, a narrative description, and tabulation

of results.

Defense counsel argued that Mil.R.Evid. 707, Man-

ual for Courts-Martial, United States (1995 ed.), is

an unconstitutional limitation of appellant’s Sixth

Amendment right to present a defense. The military

judge asked if defense counsel was “suggesting that

this court should undertake to kind of embark on a

constitutional foray, if you will, in trying to, in effeci,

violate the specific provisions of 707?” Defense coun-

3a

sel responded, “I believe that Military Rule 707 is

unconstitutional.” The military judge refused to per-

mit presentation of foundation evidence. He relied on

the language of Mil.R.Evid. 707 and a commentator’s

opinion that “military judges cannot admit or enter-

tain any motion seeking admission, at trial or in

limine, [of] such testimony.” See S. Saltzburg, L.

Schinasi, & D. Schlueter, Military Rules of Evidence

Manual 213 (3d ed., 1996 Cumulative Supplement).

The ‘sovernment’s evidence of appellant’s cocaine

ingestion consisted solely of the results of < random

urinalysis that tested positive for cocaine. Appellant

testified that he suffers from a seizure disorder for

which he takes prescribed medication. He has been

warned that using alcohol or illegal drugs would

trigger a seizure and risk death. He testified that he

“did not know how that stuff got in my system. All

I do know is that I did not do it.” Appellant also pre-

sented testimony from supervisors and coworkers that

it would be out of character for him to use illegal

drugs.

Trial counsel cross-examined appellant at length,

confronted him with the testimony against him, and

argued to the court members that appellant lied “‘be-

cause he’s got everything at stake in this court-

martial.”

A military judge’s decision to admit or exclude evi-

dence is tested on appellate review for abuse of discre-

tion. We review a military judge’s “conclusions of law

under the de novo standard.” If a military judge’s

ruling is based on “an erroneous view of the law,”

he has abused his discretion. See United States v.

Sullivan, 42 MJ 260, 363 (1995): 1 S. Childress &

4a

M. Davis, Federal Standards of Review, § 2.13 at

2-92 (2d ed. 1992).

Because appellant testified and placed his credibil-

ity as a witness in issue, the granted issue is ripe for

appellate review. United States v. Williams, 438 MJ

348 (1995). For the reasons stated in United States

v. Scheffer, No. 95-0521, ——- MJ —— (1996), we

hold that the military judge erred by applying a per

se exclusionary rule to appellant’s proffered evidence.

Appellant is entitled to offer evidence of the scientific

theory underlying polygraph evidence and application

of that theory to appellant. Jd. We cannot and need

not determine from the record before us if Dr. Sack

is a necessary and material foundation witness. See

United States v. Garries, 22 MJ 288 (CMA 1986).

If appellant can successfully lay a foundation, then

Dr. Sack may be an essential witness to testify about

the three polygraph examinations he conducted on

appellant.

Because appellant tendered an ex parte polygraph

examination, the military judge may require that

appellant submit to examination by a government

polygraph examiner as a condition of admissibility.

See United States v. Piccinonna, 885 F.2d 1529, 1536

(11th Cir. 1989). Similarly, if the military judge

suspects that appellant may have been “shopping”

for a favorable examination, he may require disclo-

sure of the results of all polygraph examinations as a

condition of admissibility. See New Mexico Rule of

Evidence 707. If conflicting polygraph evidence is

presented, we expect the military judge to treat it

like any other conflicting scientific evidence or expert

opinion testimony. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct.

5a

2786, 2794 (1998) (rules of evidence contemplate

“sensible triers of fact to evaluate conflicts”).

The decision of the United States Air Force Court

of Criminal Appeals is set aside. The record of trial

is returned to the Judge Advocate General of the Air

Force for submission to an appropriate convening au-

thority for a hearing before a military judge. Ap-

pellant will be provided an opportunity to lay a

foundation for admission of the proffered polygraph

evidence. If the military judge decides that the poly-

graph evidence is admissible, he will set aside the

findings of guilty and the sentence, and a rehearing

may be ordered. If the military judge decides that

the polygraph evidence is not admissible, he will make

findings of fact and conclusions of law. The record

will be sent directly to the Court of Criminal Appeals

for expeditious review. Thereafter, Article 67, UCMJ,

10 USC § 867 (1989), will apply.

Chief Judge COX and Senior Judge EVERETT

-concur.

SULLIVAN, Judge (dissenting) :

I dissent for the reasons stated in my separate

opinion in United States v. Williams, 43 MJ 348, 356

(1995) (Sullivan, C.J., concurring in the result).

CRAWFORD, Judge (dissenting) :

I dissent for the reasons stated in my dissenting

opinion in United States v. Scheffer, No. 95-0521/

AF, —— MJ : (1996).

6a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

No. 95-0189

Crim. App. No. 30248

UNITED STATES, APPELLEE

Vv,

CHESTER NASH, JR., Staff Sergeant

U.S. Air Force, APPELLANT

Argued March 26, 1996

Decided Sep. 18, 1996

OPINION OF THE COURT

GIERKE, Judge:

A general court-martial composed of officer

members at Hanscom Air Force Base, Massachusetts, !

convicted appellant, contrary to his pleas, of wrong-

fully using cocaine, in violation of Article 112a, Uni-

form Code of Military Justice, 10 USC $912a. His

approved sentence provides for a bad-conduct dis-

charge, confinement for 3 months, and reduction to

the lowest enlisted grade. The Court of Criminal

Appeals affirmed the findings and sentence in an un-

published opinion dated October 7, 1994.

7a

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED

IN DENYING APPELLANT’S MOTION TO

PRESENT EVIDENCE OF A FAVORABLE

POLYGRAPH RESULT CONCERNING HIS

DENIAL OF USE OF DRUGS WHILE IN

THE AIR FORCE.

We hold that the military judge erred by applying

a per se exclusionary rule to appellant’s proffered

evidence.

Before trial, appellant underwent a_ polygraph

examination by Dr. Frank Sack, Ph.D. He denied

using or possessing cocaine during the period in ques-

tion, and Dr. Sack found no deception when he

answered pertinent questions. Six days after Dr.

Sack’s examination, appellant submitted to another

examination administered by the Air Force Office of

Special Investigations (OSI). The OSI examiner

concluded that appellant’s answers indicated decep-

tion.

Neither Dr. Sack nor the OSI examiner had trav-

eled to the site of the court-martial. ‘Trial counsel

explained that both sides wanted “a preliminary

ruling” from the military judge regarding admis-

sibility of their testimony before they commenced

travel to the site of the court-martial. The military

judge ruled that neither side would be permitted to

present polygraph evidence. He explained:

I’ve considered the accused’s Fifth and Sixth

Amendment rights. However, in this case I have

two polygraph exams administered by two dif-

ferent polygraph examiners which resulted in

two different conclusions. . . . In light of the

8a

state of that evidence, I find that the risk of

confusion of the factfinders with dueling poly-

graphers justifies the application of MRE [Mil.

R.Evid.] 707 to this particular accused in this

case. As the analysis to MRE 707 indicates it

is a bright line rule that polygraph evidence is

not admissible by any party at a court-martial

even if stipulated to by the parties. I’d also note

because there is in existence two conflicting poly-

graph exams, in light of that regard that they

ask basically the same questions the results of

those exams have little probative value. So even

balancing the probative value of the exculpatory

and the incriminatory polygraph exams—when

that balancing test is done—it still is outweighed

—any probative value is still outweighed by the

risk of confusion to the factfinders in this court-

martial.

The Government’s case-in-chief consisted of evi-

dence that appellant’s urinalysis specimen tested posi-

tive for cocaine. Appellant testified on the merits

and denied using cocaine. He testified that he did not

know why his urine tested positive for cocaine.

Appellant’s wife testified that she had never known

appellant to use drugs, and she attempted to account

for his whereabouts during the time before the uri-

nalysis. Staff Sergeant (SSgt) Lister, a friend of

appellant, also attempted to account for his where-

abouts.

In rebuttal, the Government produced evidence that

appellant and SSgt Lister were not truthful and that

appellant had a motive to lie to protect a separation

bonus of approximately $24,000.00. In closing argu-

ment trial counsel argued that appellant had a motive

to lie and did lie.

ii lad

9a

A military judge’s decision to admit or exclude

evidence is tested on appellate review for abuse of

discretion. We review a military judge’s “conclusions

of law under the de novo standard.” If the military

judge’s ruling is based on “an erroneous viv ’ of the

law,” he has abused his discretion. See United States

v. Sullivan, 42 MJ 360, 363 (1995); 1 S. Childress

& M. Davis, Federal Standards of Review § 213 at

2-92 (2d ed. 1992). Because appellant testified and

placed his credibility in issue, the granted issue is

ripe for appellate review. United States v. Williams,

43 MJ 348 (1995).

The military judge’s ruling was incorrect on two

counts. First, he relied on the per se exclusion under

Mil.R.Evid. 707, Manual for Courts-Martial, United

States (1995 ed.). See United States v. Scheffer, No.

95-0521, MJ (1996). Second, he based his

conclusion that the evidence lacked probative value

solely on the anticipated conflict between the two

expert witnesses. The federal and military rules of

evidence contemplate “sensible triers of fact to evalu-

ate conflicts.” Daubert v. Merrell Dow Pharmaceu-

ticals, Inc., 509 U.S. 579, 589, 118 S.Ct. 2786, 2794

(1993); see United States v. Mobley, No. 95-0758,

MJ , (6) (1996). In other areas of “soft

science” such as mental responsibility, conflicts among

experts are common. The mere fact that two experts

disagree does not necessarily negate the probative

value of both. “Under military law, . . . conflicting

expert opinions are to be resolved by the triers of fact

after evaluating them in the context of the totality

of the evidence and after proper instructions by the

military judge.” United States v. Dock, 35 MJ 627,

635 (ACMR 1992), aff'd, 40 MJ 112 (CMA 1994).

10a

The decision of the United States Air Force Court

of Criminal Appeals is set aside. The record of trial

is returned to the Judge Advocate General of the Air

Force for submission to an appropriate convening

authority for a hearing before a military judge. Ap-

pellant will be provided an opportunity to lay a foun-

dation for admission of the proffered polygraph evi-

dence. If the military judge decides that the poly-

graph evidence is admissible, he will set aside the

findings of guilty and the sentence, and a rehearing

may be ordered. If the military judge decides that the

polygraph evidence is not admissible, he will make

findings of fact and conclusions of law. The record

will be sent directly to the Court of Criminal Appeals

for expeditious review. Thereafter, Article 67, UCMJ,

10 USC § 867 (1989), will apply.

Chief Judge COX and Senior Judge EVERETT

concur.

SULLIVAN, Judge (dissenting) :

I dissent for the reasons stated in my separate

opinion in United States v. Williams, 43 MJ 348,

356 (1995) (Sullivan, C.J., concurring in the result).

CRAWFORD, Judge (dissenting) :

I dissent for the reasons stated in my dissenting

opinion in United States v. Scheffer, No. 95-0521/AF,

MJ ; (1996).

lla

APPENDIX C

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

ACM 30881

22 March 1995

UNITED STATES

Vv.

SERGEANT CEDRIC W. MoBLey, FR224-13-2724

United States Air Force

Before

SNYDER, SCHREIER, and CONNELLY

Appellate Military Judges

OPINION OF THE COURT

CONNELLY, Judge:

Appellant pled not guilty to three specifications of

use or possession of cocaine in violation of Article

112a, Uniform Code of Military Justice. A panel ac-

quitted him of two specifications, but returned a

guilty finding on the remaining specification which

involved a positive urinalysis. The court members

sentenced him to a bad-conduct discharge, confine-

ment for 1 year, reduction to E-1, and total for-

12a

feitures. The convening authority modified the for-

feitures to $414.00 per month for 12 months.

On appeal, appellant asserts three errors: 1) fail-

ure to grant a challenge for cause; 2) denial of poly-

grapher assistance and failure to admit polygraph

results; 3) failure to give a requested spillover in-

structions. Finding no error we will affirm.

Lt Col K, one of the detailed court members, was

a squadron commander on the appellant’s base. Act-

ing upon information in an OSI report and briefings,

Lt Col K preferred charges against one of his squad-

ron members. Some of the information contained in

the OSI records was provided by Michelle M.—a wit-

ness in appellant’s case. The defense counsel voiced

“concerns” that Lt Col K may have formed an opinion

as to Michelle M’s credibility and that he could not be

impartial in appellant’s case.

During voir dire, Lt Col K stated that he did not

specifically remember Michelle M’s name from any

OSI reports but that her testimony was familiar to an

individual the OSI had discussed with him. The mem-

ber stated that the information he had previously ob-

tained from the OSI would not influence him and that

he would objectively weigh the data in the case.

Defense counsel never formally challenged Lt Col K

other than voicing his concerns. The military judge

construed this concern as a challenge for cause. We

shall do the same in the interest of justice. However,

counsel are reminded that R.C.M. 912(f) (3) provides

that counsel are to state their challenge and the

grounds for it. Expressing one’s “concern” about a

court member is an inappropriate method to state a

challenge for cause. United States v. Blocker, 32 M.J.

281 (C.M.A. 1991).

l3a

The standard of review concerning a military

judge’s decision on whether to grant a challenge for

cause is whether the military judge clearly abused his

or her broad discretion. United States v. McLaren,

388 M.J. 112, 119 {C.M.A, 1993). There is no abuse

of discretion present as the record shows Lt Col K to

be impartial and that his decisions on findings and

sentences would solely be based on the evidence and

the law. United States v. Reynolds, 23 M.J. 292

(C.M.A. 1987). Further, the fact that defense counsel

did not challenge Lt Col K is an indication of satisfac-

tion with his answers.

The appellant’s second error concerning poly-

grapher assistance and the admission of polygraph re-

sults has been rendered moot by United States v.

Scheffer, M.J. —— (A.F. Ct. Crim. App. 1995)

(en banc).

The final asserted error is the military judge’s fail-

ure to give a requested spillover instruction. The tests

for determining whether the refusal to give a defense

requested instruction is error are whether: (1) the

requested instruction is in itself a correct change;

(2) it is not substantially covered in a given instruc-

tion; and (3) it is on such a vital point in the case

that the failure to give it deprived the accused of a

defense or seriously impaired an effective presenta-

tion. United States v. Aker, 19 M.J. 733 (A.F.C.M.R.

1984). The requested instruction was not a proper

spillover instruction and impermissibly invaded the

province of the fact finder. United States v. Haye, 29

M.J. 213 (C.M.A. 1989). The trial judge’s instruc-

tions properly informed the court members of the ap-

plicable law. We find no error in his refusal to give

the proferred instruction.

l4a

The findings and the sentence are correct in law and

fact, the sentence is not inappropriate, and no error

prejudicial to the substantial rights of the appellant

was committed. Accordingly, the findings of guilty

and the sentence are

AFFIRMED.

Senior Judge SNYDER concurs.

Judge SCHREIER (concurring in part and dissent-

ing in part):

I dissent from that portion of the opinion concerning

the admissibility of polygraph information in this con-

tested urinalysis case, for the same reasons detailed

in Judge Pearson’s dissent in United States v. Schef-

fer, M.J. —— (A.F. Ct. Crim. App. 1995) (en

bane) which I joined.

[ AIR FORCE SEAL }

OFFICIAL

/s/ Al J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

15a

APPENDIX D

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

ACM 30248

7 October 1994

UNITED STATES

Vv.

STAFF SERGEANT CHESTER NASH JR., FR502-78-5805

United States Air Force

Before

SNYDER, PEARSON, and SCHREIER

Appellate Military Judges

SNYDER, Senior Judge:

A general court-martial convicted Staff Sergeant

Nash, contrary to his pleas, of the wrongful use of

cocaine, Article 112a, UCMJ, and sentenced him to a

bad-conduct discharge, confinement for 3 months, and

reduction to E-1, which the convening authority ap-

proved. He raises four assignments of error. Finding

no error prejudicial to his substantive rights, we

affirm.

Appellant’s first assignment of error is that there

is insufficient evidence in the record to determine

whether his initial detailed defense counsel unilater-

16a

ally withdrew from representing him. The allied

papers of the record of trial reflect that Capt S repre-

sented appellant at the Article 32 Investigation. See

Article 32, UCMJ; Rule for Courts-Martial (R.C.M.)

405. However, the military judge was not apprised

of this fact when he inquired of appellant regarding

his rights to counsel under Article 38(b), UCMJ.

Appellant informed the military judge that he desired

to be represented by Capt D and no one else.

Appellate defense counsel has submitted a release

signed by appellant wherein he agrees and consents

to Capt S’ release due to his reassignment. In an ef-

fort to rebut the release, appellate defense counsel

argue that there is insufficient evidence from which to

conclude appellant was fully informed of his options

before he signed the release, and that he may have

released Capt S because he thought he had no choice.

Counsel assert that, in the absence of additional docu-

mentation, this Court should direct a limited hearing

to inquire into this matter. See United States v.

DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

Appellant relies on United States v. Acton, 33 M.J.

536 (A.F.C.M.R. 1991), and cases cited therein, to

support his averment. We agree with appellant that

detailed counsel may not unilaterally withdraw from

representation. We disagree, however, that the record

before us, as properly supplemented, is deficient. The

release signed by appellant is straight forward. While

it does not specifically state that he was aware he

could insist on Capt S’ representation, neither does

it reflect he was not aware of his rights. In Acton,

the record was entirely silent, and this Court stated

therein that the result would have been different in

the face of a release by the accused. We also note that

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17a

nowhere in the post-trial submissions is there any in-

dication that appellant was deprived of counsel of his

choice.

It is quite obvious that this issue could easily have

been avoided had detailed counsel informed the mili-

tary judge that appellant initially was represented by

Capt S. In the event the military judge omits asking

an accused if there was an attorney-client relationship

with another counsel, counsel of record should, as an

officer of the court, inform the military judge of any

prior representation by another counsel so that a

proper inquiry may be conducted.

Appellant’s next assignment of error is that MIL.

R. Evip. 707 unconstitutionally deprived him of his

rights to due process and compulsory process of wit-

nesses in violation of the Fifth and Sixth Amendments

respectively. This averment arises as a result of the

military judge having excluded the results of an ex-

culpatory polygraph examination which appellant

took prior to his trial. See generally United States v.

Rodriguez, 37 M.J. 448 (C.M.A. 1993) ; United States

v. Gipson, 24 M.J, 246 (C.M.A. 1987); United States

v. Williams, 39 M.J. 555 (A.C.M.R. 1994).

After considering the arguments at trial and the

able briefs of the parties before this Court, we con-

clude that, given the specific facts of the case sub

judice, we need not reach the constitutional question

to dispose of this assignment of error. Instead, we

conclude the military judge did not abuse his discre-

tion by excluding the polygraph results under MIL. R.

Evip, 403, because he allowed the defense and the

prosecution the opportunity to present evidence to lay

a proper foundation, and they failed to proffer suffi-

cient evidence.

18a

Before entering pleas, trial defense counsel made

timely motions to admit the results of appellant’s

private polygraph examination and for the produc-

tion of the polygrapher as a witness. The Govern-

ment opposed the motions and, in the alternative,

moved for admission of the results of a polygraph

examination administered by the Air Force Office of

Investigations (AFOSI) and for permission to pre-

sent the testimony of the AFOSI polygrapher. After

trial defense counsel asserted that MIL. R. Evip. 707

(a) could not preempt an accused’s right to present

evidence, the military judge inquired of trial defense

counsel if he believed other rules of evidence applied

with respect to relevancy. After trial defense counsel

responded, “yes,” the military judge stated:

MJ: Well, why don’t we go ahead. Although

the government has stipulated to the facts in

your motion, I’d like to see both polygraph exams

because as part of the government’s response, is

a cross-motion to get theirs in, too. Is that cor-

rect?

* & * od *

MJ: I’m trying to sort out what we’re going

to do next. Is Mr. [S the polygrapher] avail-

able?

DC: Yes, sir, he is. When I say he is avail-

able—he is in Utica, New York, waiting [sic]

government travel orders. The government said

they would not provide him with transportation.

MJ: So we’re not ready to proceed with the

rnotion then?

DC: Yes, sir.

MJ: Trial Counsel?

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19a

TC: Your honor, I believe in our request we

merely asked that a preliminary ruling be made

as soon as possible to provide arrangements to

have these polygraphers here. The polygrapher

for the government is prepared to travel.

MJ: Where is he?

TC: He’s in Andrews AFB, Maryland.

After a recess, the military judge ruled:

I’ve considered the accused’s Fifth and Sixth

Amendment rights. However, in this case I have

two polygraph exams administered by two dif-

ferent polygraph examiners which resulted in

two different conclusions. . . . In light of the

state of that evidence, I find the risk of confusion

of the fact finders with dueling polygraphers

justifies the application of MRE 707 to this par-

ticular accused in this case. As the analysis to

MRE 707 indicates it is a bright line rule that

polygraph evidence is not admissible by any

party at a court-martial even if stipulated by the

parties. I’d also note because there is in exist-

ence two conflicting polygraph exams, in light of

that regard that they ask basically the same

questions the results of those exams have little

probative value. So even balancing the probative

value of the exculpatory and the incriminatory

polygraph exams—when that balancing test is

done—it still is outweighed—any probative value

is still outweighed by the risk of confusion to the

fact finders in this court-martial. Therefore,

your motion to admit the exculpatory polygraph

exam is denied; likewise, the government will

not be allowed to admit their polygraph exam

incriminating the accused.

20a

MiL. R. Evip. 707(a) provides that “the results

of a polygraph examination, the opinion of a poly-

graph examiner, or any reference to an offer to take,

failure to take, or taking of a polygraph examination,

shall not be admitted into evidence.” Prior to the

effective date of this provision, the Court of Military

Appeals ruled that results of polygraph examina-

tions are not, as a matter of law, inadmissible in

trials by court-martial. Gipson, 24 M.J. at 247 (em-

phasis added). In reaching its holding, however, the

Court did not subscribe to the notion that an accused

has a constitutional right to present favorable poly-

graph evidence under any or all circumstances. Any

such evidence must be shown to be relevant and help-

ful to the disposition of the case at hand, and the

proponent thereof shoulders the burden of demon-

strating relevancy and helpfulness. Gipson, 24 M.J.

at 252. Consequently, MIL. R. Evip. 707(a) aside,

all an accused is entitled to is the opportunity to pre-

sent evidence which may successfully discharge the

burden. As with evidentiary matters, this issue is

addressed to the discretion of the military judge.

As the record reflects, the military judge did not

base his ruling solely on the Mit. R. Evip. 707(a)

exclusion, but—instead—availed trial defense counsel

of the opportunity to demonstrate the relevancy of

the proffered evidence. Cf. Williams, 39 M.J. at 558.

The supporting documents to which trial and defense

counsel referred during their respective arguments

reflected no more than the “relevant questions” asked

by the polygraphers and their respective conclusions.

There was no proffer of evidence regarding the spe-

cifies as to how the examinations were conducted.

See Rodriguez, 37 M.J. at 452-53. Defense counsel

did not press for the polygrapher’s presence. He did

oe 8 ee er eee

2la

not apprise the military judge of what the expected

testimony of appellant’s polygrapher would be with

regards to the principles involved in polygraphs, the

calibration of the polygraph machine, etc., or the

qualifications of the polygrapher. This could have

been done either via an offer of proof or a stipulation

of expected testimony. Trial counsel also failed to

address these matters.

We conclude this is not a case where MIL. R. Evib.

707(a) precluded an accused from presenting evi-

dence to the court-martial. In view of the limited

evidence presented in support of the motion after

being afforded the opportunity to do so, we are con-

strained to conclude that the military judge did not

abuse his discretion by denying the motion. See Gip-

son, 24 M.J. 246.

Appellant also attacks the legal and factual suffi-

ciency of the evidence. To find a conviction legally

sufficient, this court must determine that, consider-

ing the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found

all the essential elements beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). To

find a conviction factually sufficient, we must deter-

mine that, after weighing the evidence in the record

of trial and making allowances for not having per-

sonally observed the witnesses, we personally are con-

vinced of the accused’s guilt beyond a reasonable

doubt. United States v. Turner, 25 M.J. 324 (C.M.A.

1987). Having reviewed the evidence, we too are

convinced, beyond a reasonable doubt, of appellant’s

guilt.

Pursuant to United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982), appellant claims ineffective as-

sistance of counsel. The specific derelictions alleged

22a

are: counsel’s failure to request a retest of appel-

lant’s urine for ecgoninemethylester (EME), and the

failure to properly investigate and prepare for trial.

The specifies of the latter allegation is that trial de-

fense counsel accepted and relied on the appointed

expert consultant, who worked for the Armed Forces

Drug Testing Laboratory, instead of obtaining an in-

dependent toxicologist, he failed to investigate the

allegation that appellant’s neighbor adulterated ap-

pellant’s urine sample, and trial defense counsel

failed to subpoena appellant’s father, a retired Chief

Master Sergeant, as a witness.

Capt D, the trial defense counsel, answered these

allegations in his response affidavit. He states that,

due to the extremely brief time which EME can be

detected in one’s urine and because the absence of

EME in a retest would not, under the circumstances

of appellant’s case, indicate innocence, he had no good

faith basis on which to request a retest for the pres-

ence of EME. As for the neighbor’s involvement,

Capt S pursued that theory prior to the pretrial in-

vestigation without success. In addition to reviewing

the pretrial investigation, Capt D interviewed the

noncommissioned officer in charge of the base labora-

tory and concluded the chain of custody of appellant’s

urine sample was intact. Capt D finalizes his affidavit

by stating appellant never requested his father’s pres-

ence and that his father’s testimony was not relevant

to appellant’s defense, in light of the testimony of

the other strong character witnesses presented. More-

over, Capt D states that appellant advised him there

was a family emergency elsewhere which required

his father’s presence.

To demonstrate ineffective assistance of counsel,

appellant must establish a two-pronged premise.

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23a

First, that counsel’s performance was deficient. This

requires showing that counsel was not functioning as

the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the deficient performance must

have prejudiced the defense. This requires showing

that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is

reliable. United States v. Scott, 24 M.J. 186, 188

(C.M.A. 1987), quoting Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064; accord

United States v. Lonetree, 35 M.J. 396, 412-13

(C.M.A. 1992).

In testing for whether an appellant has carried

this burden, this Court resolves three basic ques-

tions: (1) Are appellant’s allegations true and, if so,

is there a reasonable explanation for counsel’s actions

in the defense of the case? (2) If true, did the level

of advocacy fall measurably below the performance

ordinarily expected of fallible lawyers? and (3) If

ineffective assistance of counsel is found to exist, is

there a reasonable probability that, absent the errors,

the factfinder would have had a reasonable doubt

regarding guilt? United States v. Polk, 32 M.J. 150,

153 (C.M.A. 1991).

We find appellant has not carried his burden on

any of the Polk items. The record does not reflect

any reason to disbelieve Capt D with regards to ap-

pellant’s father. Second, as stated, finding no EME

in a retest of appellant’s urine would not have de-

tracted from the weight of the Government’s test.

Appellant is not entitled to an expert of choice, and

there is no indication that the appointed expert’s con-

sultation was deficient. Appellant conceded on cross-

examination that his neighbor was not implicated or

involved in his urine sample testing positive for a

24a

cocaine metabolite. The record reflects Capt D’s prep-

aration for trial. The fact that apparently he opted

to litigate the polygraph results on the basis of the

constitutionality of MIL. R. Evip. 707(a), rather than

403, does not detract from this conclusion.

Accordingly, the findings and sentence are correct

in law and fact, Article 66(c), UCMJ, and are hereby

AFFIRMED.

Judges PEARSON and SCHREIER concur.

[Air Force Seal]

OFFICIAL

/s/ Al J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

25a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

No. 95-0346

Crim. App. No. 30133

UNITED STATES, APPELLEE

Vv.

CHAD E. LYNN, Airman First Class

U.S. Air Force, APPELLANT

Submitted June 27, 1995

Decided Oct. 10, 1996

OPINION

GIERKE, Judge:

A general court-martial composed of officer mem-

bers at McClellan Air Force Base, California, con-

victed appellant, contrary to his pleas, of wrongful

use of marijuana, conspiracy to commit larceny, and

larceny, in violation of Articles 112a, 80, and 121,

Uniform Code of Military Justice, 10 USC §§ 912a,

880, and 921, respectively. The adjudged and ap-

proved sentence provides for a bad-conduct discharge,

confinement for 12 months, total forfeitures, and re-

26a

-

duction to the lowest enlisted grade. The Court of

Criminal Appeals affirmed the findings and sentence.

We granted review of the following issues:

I

WHETHER APPELLANT’S FIFTH AMEND-

MENT RIGHT TO A FAIR TRIAL AND HIS

SIXTH AMENDMENT RIGHT TO PRODUCE

FAVORABLE WITNESSES WAS VIOLATED

BY THE FINDING OF THE MILITARY

JUDGE THAT HE WAS WITHOUT DISCRE-

TION TO DECIDE THE ADMISSIBILITY OF

FAVORABLE POLYGRAPH EVIDENCE AND

HIS RULING, PURSUANT TO MIL.R.EVID.

707, THAT ANY SUCH EVIDENCE WAS IN-

ADMISSIBLE PER SE.

II

WHETHER APPELLANT’S FIFTH AMEND-

MENT RIGHT TO A FAIR TRIAL AND HIS

SIXTH AMENDMENT RIGHT TO PRODUCE

FAVORABLE WITNESSES WAS VIOLATED

BY THE ADMONISHMENT OF THE MILI-

TARY JUDGE, PURSUANT TO MIL.R.EVID.

707, AGAINST EVEN MENTIONING THE

WORD “POLYGRAPH,” THUS PRECLUDING

APPELLANT FROM TESTIFYING ABOUT

HIS OFFER TO SUBMIT TO A GOVERN-

MENT POLYGRAPH EXAMINATION.

Before trial, appellant submitted to a polygraph

examination by a private examiner, Mr. Douglas E.

Holbrook. During the examination, appellant denied

smoking marijuana, denied conspiring with another

airman to wrongfully use credit card numbers, denied

furnishing his alleged co-conspirator with credit card

27a

numbers, and denied wiring $300.00 to “someone in

Washington” using his landlady’s credit card number.

Mr. Holbrook found no deception when appellant

answered the relevant questions. Appellant offered

to take a government polygraph, but the Government

declined his offer.

The polygraph issue arose in connection with ap-

pellant’s motion to dismiss for lack of speedy trial.

Defense counsel pointed out that while appellant was

awaiting trial, Mil.R.Evid. 707, Manual for Courts-

Martial, United States (1995 ed.) became effective,

precluding appellant from offering polygraph evi-

dence. Defense counsel argued that if appellant had

received a speedy trial, he wouid have been entitled

to lay a foundation for his exculpatory polygraph

evidence. The military judge denied the motion to

dismiss. His ruling on the motion included the fol-

lowing statements:

Fifth, U.S. v. Gipson, 24 MJ 246 (CMA 1987)

did not suggest that polygraph evidence was ad-

missible. Appellant still maintained the burden

of establishing a foundation for its admissibility.

After allowing evidence as to the reliability of

the polygraph and the examiner, discretion re-

mained vested in the Military Judge as to the

admissibility of the results. There never was an

automatic admission of polygraph evidence under

Military Law.

Sixth, Change 5 to the MCM precludes the ad-

mission of polygraph evidence, thus removing the

discretion of the Military Judge.

Defense counsel conceded that admission of poly-

graph evidence under Gipson was discretionary, but

28a

argued that the delay in the trial deprived the defense

of the opportunity to convince the military judge that

the polygraph evidence should be admitted on the

merits. The military judge responded, “Okay. I

understand your position on that.”

Defense counsel did not challenge the constitution-

ality of Mil.R.Evid. 707 and made no further proffer

of polygraph evidence on the merits.

The Government moved in limine to prevent any

mention of appellant’s polygraph examination. The

militazy judge deferred ruling on the motion in limine

but warned “both sides that you know that Rule 707

precludes the admission of polygraph evidence.” He

admonished both counsel: “[Y]Jou are directed not

to ram the evidence of polygraph through a closed

door, just to get in in front of the members.”

Appellant testified on the merits. He admitted

knowing that the money in question had been wired,

but denied that he was the one who wired it. He

denied being part of a credit-card scam and denied

using marijuana. In rebuttal, the Government called

appellant’s supervisor, who testified that appellant

had a reputation as a liar.

After appellant was convicted, defense counsel

proferred the polygraph results for consideration on

sentencing. The military judge responded, “I’ve al-

ready ruled that polygraph is inadmissible.” Defense

counsel argued that the rules are relaxed on sentence,

but the military judge was adaniant, ruling, “We

will not admit the polygraph results.”

We hold that defense counsel made a sufficient

proffer of the polygraph evidence to preserve the issue

for appellate review. Once the military judge made

it clear that he considered such evidence per se in-

admissible and cautioned counsel for both sides

|

29a

against any mention of the evidence, we would not

expect counsel to challenge the military judge fur-

ther. We hold that the military judge erred. See

United States v. Mobley, No. 95-0758, —— MJ ——

(Sept. 18, 1996) ; United States v. Nash, No. 95-0189,

—— MJ -—— (Sept. 18, 1996).

The decision of the United States Air Force Court

of Criminal Appeals is set aside. The record of trial

is returned to the Judge Advocate General of the Air

Force for submission to an appropriate convening

authority for a hearing before a military judge. Ap-

pellant will be provided an opportunity to lay a foun-

dation for admission of his polygraph evidence. If

the military judge decides that the polygraph evi-

dence is admissible, he will set aside the findings of

guilty and the sentence, and a rehearing may be

ordered. If the military judge decides that the poly-

graph evidence is not admissible, he will make find-

ings of fact and conclusions of law. The record will

be sent directly to the Court of Criminal Appeals for

expeditious review. Thereafter, Article 67, UCMJ,

10 USC § 867 (1989) will apply.

Chief Judge COX concurs. Judge EFFRON con-

curs in the result.

SULLIVAN, Judge (dissenting) :

See my separate opinion in United States v. Wil-

liams, 43 MJ 348, 356-57 (CMA 1993).

CRAWFORD, Judge, (dissenting) :

See my separate opinion in United States v.

Scheffer, No. 95-0521, —— MJ . (Sept.

18, 1996).

30a

APPENDIX F

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

ACM 30133

18 November 1994

UNITED STATES

We

AIRMAN FIRST CLASS CHAD E, LYNN,

FR537-80-9560

United States Air Force

Before

DIXON, YOUNG, and BECKER

Appellate Military Judges

OPINION OF THE COURT

BECKER, Judge:

Despite his pleas, members convicted the appellant

of one specification of using marijuana in violation

of Article 112a, UCMJ,’ one specification of con-

spiracy to commit larceny in violation of Article 81,

UCMJ,’ and one specification of larceny in violation

110 U.S.C. § 912a (1988).

210 U.S.C. § 881 (1988).

3la

of Article 121, UCMJ.° He was sentenced to a bad-

conduct discharge, 12 months confinement, forfeiture

of all pay and allowances, and reduction to E-1.

This case began when Angela H contacted the

McClellan Air Force Base, California, detachment

of the Air Force Office of Special Investigations

(AFOSI) and related that the appellant had told

her he had been obtaining credit card account num-

bers and making unauthorized charges. According

to Angela H, this conversation occurred during a

date with the appellant and while the two were

sharing some marijuana. Based on Angela H’s in-

formation, AFOSI apprehended an Airman Fouad

(“Freddy”) Taleb, an acquaintance of both the appel-

lant and Angela H. Airman Taleb then implicated

the appellant in a scheme in which the appellant

would provide Taleb with credit card account num-

bers of customers at a lumber yard where the appel-

lant worked off duty. According 1.0 Airman Taleb,

the appellant also provided him a credit card number

belonging to the accused’s landlady, and told him

that he had used that number himself to wire $300

to an ex-girlfriend. At the appellant’s trial, prose-

cution witnesses included Angela H, Airman Taleb,‘

the ex-girlfriend, the accused’s former supervisor at

the lumber yard, the accused’s landlady, and one

lumber yard customer whose credit card number

had been used by Taleb for unauthorized purchases.

Appellant asserts four assignments of error: (1)

the military judge committed plain error in failing

* 10 U.S.C. § 821 (1988).

*Airman Taleb had previously pled guilty at a general

court-martial, in accordance with a pretrial agreement which

required him to testify against the appellant.

32a

to include Angela H in his accomplice instruction,

despite the defense’s failure to make such a request;

(2) the evidence of the appellant’s use of marijuana

is factually insufficient; (3) ineffective assistance of

counsel; and (4) the evidence of conspiracy is legally

and factually insufficient. We find no error and

affirm. Two of the appellant’s arguments merit

extended discussion.

ANGELA H AND THE ACCOMPLICE

INSTRUCTION

The military judge gave the standard instruction

admonishing the members to take special care in

evaluating the credibility of witnesses who are ac-

complices in the alleged criminal acts. In doing so,

he identified only Airman Taleb as an accomplice.

Without question, Angela H was also an accomplice,

in that she participated with the accused in using

marijuana. If the defense had requested her inclu-

sion in the instruction, the military judge would

have committed error had he refused. However,

failure of the defense to request an accomplice in-

struction waives any error, unless the omission of

the instruction rises to the level of “plain error.”

Rule for Courts-Martial (R.C.M.) 520(f); United

States v. Gittens, 39 M.J. 328, 331 (C.M.A. 1994);

United States v. Gillette, 35 M.J. 468, 470 (C.M.A.

1992). Appellant argues that the military judge’s

failure to include Angela H in the accomplice in-

struction was plain error because her testimony was

the sole evidence of the alleged marijuana offense

and her credibility had been considerably impeached,

citing United States v. Sanders, 34 M.J. 1086,

1092-93 (C.M.A. 1992).

33a

Appellant might have a point if all we had here

was a failure to request the accomplice instruction.

Unfortunately for the appellant, this is not the case.

Rather, the record shows the defense affirmatively

waived Angela H’s inclusion in the instruction. Dur-

ing the Article 39(a)* session before argument, both

counsel agreed to an accomplice instruction which

mentioned only Airman Taleb. There was no dis-

cussion of Angela H. After arguments and instruc-

tions, the military judge asked both counsel, in front

of the members, if either had any requests for addi-

tional instructions. This prompted the following

exchange:

TC: Your honor. we would ask that in addi-

tion to the instructions, you also advise the

Court members that in regard to Angela [H],

she is also technically an accomplice, because she

smoked marijuana with Airman Lynn. So, the

same consideration should be given to her.

CIV DC: No Your Honor. I would object

to that at this time. That I think—should have

been brought up before we agreed on the jury

instructions. I would object to that, Your Honor,

being untimely.

TC: Since counsel objects, I will withdraw

my comments.

MJ: Very well. Based on that, I will not

give the instruction as to accomplice for Mrs.

[H].

Any additional requests or exceptions?

CIV DC: No Your Honor.

510 U.S.C. § 839(a) (1988).

34a

We decline to find “plain error” where, as here,

the accused has affirmatively waived the accomplice

instruction, as opposed to simply failing to request

it. To hold otherwise would run afoul of the doctrine

of “invited error’ —we will not grant an appellant

relief for an instructional error which he persuaded

the military judge to make. See United States v.

Roberts, 25 F.3d 1420 (9th Cir. 1994) ; United States

v. Herrera, 23 F.3d 74 (4th Cir. 1994); and United

States v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).

See also United States v. Spears, 39 M.J. 823

(A.F.C.M.R. 1994).

INEFFECTIVE ASSISTANCE OF COUNSEL

Before his trial, the appellant released both his

detailed and individually requested Air Force defense

counsel and hired a civilian attorney, Mr. B. Appel-

lant has not personally asserted Mr. B was ineffec-

tive. Rather, his appellate defense counsel base this

assignment solely on the record. Appellate defense

counsel draw our attention to many instances where

they allege Mr. B made tactical errors and displayed

unfamiliarity with military procedure. They also

claim Mr. B was ineffective in his post-trial repre-

sentation of the appellant, in that he failed to submit

any clemency matters to the convening authority or

respond to the staff judge advocate’s recommendation.

See R.C.M. 1105, 1106.

The record reveals that Mr. B was not completely

familiar with court-martial procedure. We suspect

he may not have interviewed every witness before

trial. He made one major gaffe. Apparently, the

appellant told Mr. B that he had not worked at the

lumber yard on 10 December 1990. This was an

35a

important date because a customer, whose credit card

number had fallen into Taleb’s hands, had called in

an order on that day. Mr. B announced to the mem-

bers in opening statement that the accused had not

worked on 10 December. On cross-examination of

the appellant’s supervisor at the lumber yard, Mr. B

asked him to search company records and return to

court with evidence of whether the accused had

worked that day. Meanwhile, the appellant testified

that he had not been present at the lumber yard on

10 December. However, the supervisor returned with

evidence that the appellant had indeed “clocked in”

at the yard on 10 December, and testified to that

effect in rebuttal. Obviously, this turn of events did

not help the appellant.

Apart from his mistakes, Mr. B conducted an

aggressive defense of the appellant. He made nu-

merous motions and objections revealing significant

research into military law and procedure. His cross-

examinations of prosecution witnesses were effective

in bringing across his theory of the case and setting

the stage for the appellant’s own testimony. In the

pre-sentencing phase of the trial, Mr. B did not

present any evidence on behalf of his client. How-

ever, this could easily have been a tactical choice.*

The requirements for reversing a conviction for

ineffective assistance of counsel are twofold: the

appellant must show (1) his counsel’s performance

*In the prosecution’s rebuttal case during findings, the

appellant’s military supervisor testified that, in his opinion,

the accused was a “liar” and that he had a reputation as

such within his duty section. See Mil. R. Evid. 608(a). The

accused’s sole performance report was less than sterling, and

he had received a letter of reprimand for unauthorized ab-

sence from duty. =

36a

was so deficient that he was, in effect, not function-

ing as the “counsel” guaranteed by the Sixth Amend-

ment, and (2) his counsel’s errors were so serious as

to deprive him of a fair trial, that is, a trial whose

result is reliable. Strickland v. Washington, 466

U.S. 668, 687 (1984); United States v. Scott, 24

M.J. 186, 188 (C.M.A. 1987). Concerning the first

prong of the test, counsel’s competence is presumed

unless the accused can point out specific errors which

were unreasonable under prevailing professional

norms. United States v. Cronic, 466 U.S. 648, 666

(1984); Strickland, 466 U.S. at 688; United States

v. Harris, 34 M.J. 297, 299 (C.M.A. 1992). Mere

mistakes and errors in judgement have never been

sufficient to overcome this presumption of competence.

United States v. Rivas, 3 M.J. 282, 287 (C.M.A.

1977); United States v. Garcia, 18 M.J. 716, 718

(A.F.C.M.R. 1984), aff'd, 25 M.J. 159 (C.M.A.

1987); United States v. Coronado, 15 M.J. 750, 752

(A.F.C.M.R. 1983), pet. denied, 18 M.J. 11 (C.M.A.

1984). The contention that Mr. B was ineffective

fails both prongs of the Strickland/Scott test.

Mr. B’s trial performance, although not sparkling,

did not fall below acceptable professional norms.

Even his misjudgment concerning whether the ac-

cused worked at the lumber yard on 10 December

1990, although significant, did not render his assist-

ance “ineffective.” We would expect most seasoned

defense counsel to have checked out his client’s aver-

ments before making an opening statement and pre-

senting testimony. We certainly do not recommend

Mr. B’s in-court discovery practices to budding trial

lawyers. Notwithstanding, “[w]e do not require de-

fense counsel to be clairvoyant in their relationship

with a client.” United States v. Washington, 29 M.J.

Bremen” Fee oi

37a

-

536, 5389 (A.F.C.M.R. 1989). We are not prepared

to label a defense counsel “ineffective” solely because

he trusted his client.

Even assuming Mr. B’s efforts fell below the stand-

ard set out by the first prong of the Strickland/Scott

test, we are not persuaded that a better performance

would have affected the trial result. Appellant’s in-

volvement with Airman Taleb in the credit card

scam was thoroughly proven. Airman Taleb’s testi-

mony was corroborated by direct and circumstantial

evidence from unimpeached sources. Although An-

gela H used marijuana along with the accused, the

record reveals no motive to lie on her part. The

accused’s sentence was comfortably under the maxi-

mum, and is appropriate for the offenses and the

accused.

Nor do we find Mr. B’s post-trial performance to

have been “ineffective.” As with his trial perform-

ance, we presume counsel discharged his post-trial

responsibilities competently. The record shows ac-

cused and counsel were fully informed of the oppor-

tunity to present matters to the convening authority

before action on the findings and sentence. The record

also contains an affidavit from a paralegal in the

McClellan Air Force Base legal office which states

that the paralegal personally contacted the appellant

and confirmed his decision not to submit any matters

to the convening authority. Appellant has not claimed

Mr. B failed to follow his instructions in any way.

Under the circumstances, we infer Mr. B did exactly

what his client wanted—nothing. See United States

v. Robertson, 39 M.J. 211, 218 (C.M.A. 1994).

38a

REMAINING ISSUES

We resolve the remaining assignments of error

against the appellant. With appropriate deference to

the members’ opportunity to see and hear the wit-

nesses, we are persuaded beyond a reasonable doubt

that the accused is guilty of using marijuana. United

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

The evidence is legally sufficient to support the find-

ing that the accused is guilty of conspiracy to commit

larceny. Jackson v. Virginia, 443 U.S. 307, 324

(1979). We are also persuaded beyond a reasonable

doubt that the appellant is guilty of that offense.

Turner.

Based on the entire record, we find that all findings

of guilt and the sentence are correct in law and fact.

Accordingly, they are

AFFIRMED.

Chief Judge DIXON and Judge YOUNG concur.

[Air Force Logo]

OFFICIAL

/s/ Al J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

39a

APPENDIX G

Military Rule of Evidence 707 provides:

Rule 707. Polygraph Examinations

(a) Notwithstanding any other provision of law,

the results of a polygraph examination, the opin-

ion of a polygraph examiner, or any reference

to an offer to take, failure to take, or taking of a

polygraph examination, shall not be admitted into

evidence.

(b) Nothing in this section is intended to ex-

clude from evidence statements made during a

polygraph examination which are otherwise ad-

missible.

The Fifth Amendment to the United States Con-

stitution provides:

No person shall be held to answer for a cap-

ital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, ex-

cept in cases arising in the land or naval forces,

or in the Militia, when in actual service in time

of War or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shail be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

The Sixth Amendment to the United States Con-

stitution provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

40a

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

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