Petition for Writ of Certiorari — Odegard v. United States

In the Supreme Court of the

OCTOBER TERM, 1987

DONALD C. ODEGARD, JR., PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

COLONEL LEO L. SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

(202) 767-1562

Attorneys for Petitioner

Of Counsel: 3

MAJOR WILLIAM H. LAMB

Wright-Patterson Air Force Base,

Ohio 45433

QUESTION PRESENTED

1. Whether the petitioner was denied his due process

right to present a defense in violation of Chambers »v.

Mississippi, 410 U.S. 284 (1973), where he was

prevented from performing an in-court demonstration

and from offering testimony of an_ out-of-court

demonstration, either of which would have shown the

government’s theory of the case to have been a scientific

impossibility.

2. Whether the petitioner was denied due process of

law as required by the Fifth Amendment because the

Air Force Court of Military Review applied an improper

standard of appellate review in evaluating his case.

3. Whether the petitioner was denied due process of

law as required by the Fifth Amendment because the

trial judge’s instruction to the jury on the government’s

theory of the case unconstitutionally shifted the burden

of proof to petitioner.

(i)

INDEX

Page

re ge he es 4 Pee ce 6x #ie we |

es gh ook a hae eke AR |

Constitutional and Statutory Provisions In-

ee he ha kk ao a eS Kew 2

memeemeenee OF tne Case .................22.5. 2

Reasons for Granting the Writ ............... 7

esp os kb ed wale a eo 16

TABLE OF AUTHORITIES

Cases:

Atkins v. United States, 240 F.2d 849 (5th

Cir. 1957), cert. denied, 357 U.S. 974 reh.

denied, 354 U.S. 948 (1957) ............ )

California v. Trombetta, 467 U.S. 479

ee iA v4 on Ve eho a eS i)

Chambers v. Mississippi, 410 U.S. 284

I Pe ges ale ca ak Kas Ov 7, 8,9

Connecticut v. Johnson, 460 U.S. 73 (1983) . 14

Crane v. Kentucky, 476 U.S. 683 (1986) .... 8

Francis v. Franklin, 471 U.S. 307 (1985) ... 138, 14

Jackson v. Virginia, 443 U.S. 307 (1979) ... 12

Moore v. Chesapeake & O. Ry. Co., 493 F.

Supp. 1252 (S.D. W.Va. 1980), affd, 649

F.2d 1004 (4th Cir. 1981) .............. y)

Mullaney v. Wilbur, 421 U.S. 684 (1974) ... 18, 14

In re Oliver, 333 U.S. 257 (1948) .......... 10

Patterson v. New York, 4382 U.S. 197

OS ke a ao ww wae 13

Rose v. Clark, 478 U.S. , 106 S.Ct. 31038

se ek | Ge a Sos ws Ko 14

Sandstrom v. Montana, 442 U.S. 510

ee sta ina wa how www a 13, 14, 15

Tot v. United States, 319 U.S. 463 (1943) ... 15

(iii)

iV

Cases — Continued: Page

Rock v. Arkansas, 107 S.Ct. 2704 (1987) ... 8

Ulster County Court v. Allen, 442 U.S. 140

Es vw aa eras eae oo Lead cece 14, 15

United States v. Adam, 20 M.J. 681

Ee fs 5 Mh) GRA ry re 10

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

I ol no Oc pg tere reer ate ee 10

United States v. Gainey, 380 U.S. 63

EDR RSE Be GCA esas eer ra eae 15

United States v. Grandmount, 680 F.2d 867

Cee Ge ee en ee ae ate ee ie 14

United States v. McDougald, 650 F.2d 532

Ene ee cae cece 13

United States v. Odegard, ACM 24656

(A.F.C.M.R. October 17, 1985), 25 M.J.

2 et BR) re re rr _. -passim

United States v. Pohlot, 827 F.2d 889 (3d

be. SRR ee ee een hy nes ree 8

United States v. Sanchez, 790 F.2d 245

I oe ete te Si ew aa etna 13, 14

United States v. Sikorski, 21 U.S.C.M.A.

B46, 46 CBE. TID CSTE) occ ccc cscs 10

United States v. Taliau, 7 M.J. 845

POPs 5 SR ee ener area 10

United States v. Yeager, 15 U.S.C.M.A. 226,

ee 8 ef | ee ere 10

Washington v. Texas, 388 U.S. 14 (1967) ... 8

Wilson v. United States, 162 U.S. 613

Ss er a sy vig Say 13

In re Winship, 397 U.S. 358 (1970) ........ 12

Woodby v. INS, 385 U.S. 276 (1966) ....... 12

Constitutions and Statutes:

Cae: GG: I hile in own aaas cas passim

28 U.S.C. § 1259(3)Supp. II] 1985) ....... 1

Statutes — Continued: Page

Uniform Code of Military Justice:

Art 66(c), 10 U.S.C. § 866(c)(1982) ..... 2, 4,

10, 13

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

| Dr Oe ek re ae 1]

Miscellaneous:

Il J. Wigmore, Evidence, § 273 (3d ed.

re eee Nae rN tems 13

In the Supreme Court of the United States

OCTOBER TERM, 1987

No.

DONALD C. ODEGARD, JR., PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Donald C. Odegard, Jr., respectfully prays that a writ

of certiorari issue to review the judgment of the United

States Court of Military Appeals entered in his case on

September 30, 1987.

OPINIONS BELOW

The decision of the United States Air Farce Court of

Military Review was issued on October 17, 1985. United

States v. Odegard, ACM 24656 (A.F.C.M.R. October 17,

1985). That decision is unreported, and is reproduced in

the Appendix to this Petition. The decision of the

United States Court of Military Appeals is reported at

25 M.J. 140 (C.M.A. 1987), and is reproduced in the Ap-

pendix.

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h(Supp. II] 1985) and 28 U.S.C.

§ 1259(3\Supp. III 1985). The judgment of the Court of

Military Appeals was entered on September 30, 1987.

(1)

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment provides:

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

property, without due process of law...

Article 66(c) of the Uniform Code_of Military Justice

(“the Code”), 10 U.S.C. § 866(c)(1982), provides:

(c) In a case referred to it, the Court of Military

Review may act only with respect to the findings

and sentence as approved by the convening authori-

ty. It may affirm only such findings of guilty and

the sentence or such part or amount of the

sentence, as it finds correct in law and fact and

determines, on the basis of the entire record,

should be approved. In considering the record, it

may weigh the evidence, judge the credibility of

witnesses, and determine controverted questions of

fact, recognizing that the trial court saw and heard

the witnesses.

STATEMENT OF THE CASE

This is a larceny case involving an Air Force Academy

Cadet in which the proof of guilt is based on the use of a

nearly invisible staining powder, methylene blue

chloride (MBC), that becomes immediately visible when

it come in contact with moisture on the human hand.

The Air Force Court of Military Review summarized the

facts of this case in its decision set out in the Appendix.

As the Air Force Court of Military Review noted, the

critical issue presented to them was the factual guilt of

petitioner. A portion of their decision was a follows:

The evidence showed that appellant had knowledge

of the presence of some money in Pizzarello’s desk,

although he disavowed knowing exactly where it

3

was located. Appellant also had the opportunity to

steal the money on Friday, 3 February, after he

returned from lunch, and before reporting to his

first afternoon class. The absence of any blue stains

on his hands and fingers that day or the next can be

explained by noting the protection afforded by the

envelope SA [Special Agent] Doughman fabricated.

As we view the facts, appellant could have picked

up the money-bearing envelope without touching

the bills, and thereafter folded it in half several

times with the exposed portion of the bills toward

the inside of the fold. In this manner, the folded

envelope could be secreted in a pocket of his

checkbook underneath the blank checks without his

skin ever coming in direct contact with the MBC

{methylene blue chloride] on the bills. This would

also prevent the money from coming in direct con-

tact with the interior of the checkbook; only that

MBC which sifted down within the folding envelope

might contaminate the interior of the checkbook. It

was this small amount of contaminant which SA

Doerr found on his kimwipe after he carefully and

thoroughly wiped all areas within the checkbook.

This thoroughness on his part can explain why no

residue was located on the checkbook when it was

re-examined at the laboratories.

It was strenuously argued below in briefs and in oral

argument before the Air Force Court of Military

Review and the Court of Military Appeals that the

character of this powder is not such that it could con-

taminate a checkbook in the manner described without

also leaving traces not only on a kimwipe but also on the

checks or other portions of the interior of the

checkbook. There was no evidence of the powder re-

maining on the checkbook when it was later examined in

a government laboratory. The Air Force Court of

q

Military Review, in the exercise of its fact finding

powers under Article 66(c) of the Code, constructed a

hypothetical scenario consistent with guilt, and the

Court of Military Appeals followed the lower court in its

disposition of this case. (Appendix A).

In order to demonstrate the impossibility of the

government’s theory of contamination, the defense of-

fered to provide a demonstration of the properties of

the powder either through in-court demonstration or

testimony of an out-of-court experiment. (R. 12). The

government made a written motion in limine seeking to

prevent the defense from offering such evidence. (App.

Exhibit VII; R. 217). The basis of the government mo-

tion was that “A party wishing to introduce evidence of

a test or experiment, conducted either out or in court,

must first show that the experiment was made, or is to

be made under conditions and circumstances similar to

those prevailing at the time of the occurrence which the

experiment is intended to reproduce...” (App. Exhibit

VII) (emphasis added). The military judge’s ruling at R.

239-240 precluded either in-court demonstrations or

testimony concerning out-of-court demonstrations on

the basis that it was “impossible to duplicate what was

done” in that there was no evidence of how the accused

placed the money in the checkbook! The defense pur-

pose for offering these experiments was not to show an

event but to show that the natural properties of the

staining powder rendered the government’s theory of

guilt, based on the presence of the powder several days

after the theft in the places alleged, a scientific im-

possibility. lronically, the report of the officer who con-

ducted the pretrial investigation of petitioner’s case

(and who recommended that the case not proceed to

trial) stated that more information regarding the

physical properties of MBC was needed and opined that

defense experiments regarding those properties should

+)

be admissible at trial. The pretrial advice of the Air

Force Academy staff judge advocate to the convening

authority agreed that expert testimony about MBC

should be admissible at trial.

The military judge first decided not to give a “con-

sciousness of guilt” instruction and then decided to give

it. (R. 281-282). The defense objected to the instruction

on certain legal grounds. (R. 281). The instruction was

given. (R. 302).!

The basis for the instruction was not that statements

of the accused were inconsistent with the uncon-

tradicted facts of the case, but that statements by the

accused that he had not seen the money were inconsis-

tent with his own testimony and that of the government

witness, Cadet Pizzarello, who was the accused’s room-

mate. (R. 281). Cadet Odegard testified that he

remembered Cadet Pizzarello coming into the room and

announcing that he had some money he could not spend

that weekend because he was on confinements.? (R.

172). Three days after the theft was discovered, Captain

Steele, during the search of Cadet Odegard’s room,

asked Cadet Odegard if he had seen the money — not did

he deny knowledge that the money was ever present in

‘In pertinent part, the instruction was as follows:

You are advised that conduct of an accused, including statements

made and acts done upon being informed that a crime has been

committed or upon being confronted with a criminal charge, may

be considered by the court in the light of other evidence in the case

in determining the guilt or innocence of the accused. When the ac-

cused voluntarily offers an explanation or makes some statement

tending to establish his innocence, and such explanation or state-

ment is later shown to be false, the court may consider whether this

circumstantial evidence points to a consciousness of guilt. (R. 302).

2Confinements is a term describing an administrative

disciplinary measure whereby Air Force Academy cadets are

restricted to their dormitory rooms and the restroom.

6

the room. (R. 148). Cadet Odegard’s statement that he

had not seen the money was thus actually an ex-

culpatory statement, and the government’s belabored

theory based on the literal language used is both a weak

argument on the facts and an even weaker basis to give

a “consciousness of guilt” instruction. Cadet Odegard

also made an exculpatory statement to Special Agent

Doerr of the Air Force Office of Special Investigations

that he (Odegard) “. .. knew nothing about the theft or

nothing about the money.” (R. 112). The government

sought to use such testimony in the light most favorable

to their version of the facts (i.e., that petitioner denied

knowing anything about the money at all) to provide a

basis for a consciousness of guilt instruction. Cadet

Odegard’s statements to a Cadet Weeth after Cadet

Odegard had been charged were likewise not in denial of

knowledge that the money was in the room but were

made in an effort to understand how (as he then thought

was the case) his property had been contaminated by

the staining power. (R. 153-154). (Later the results of

examination of the wallet and checkbook in the

laboratory showed no evidence of the powder, but Cadet

Odegard could not know that at this time). Thus, the in-

struction was not given based upon an inconsistency be-

tween Cadet Odegard’s statements on a prior occasion

and the uncontradicted facts of the case, but on the

basis of a tortured government theory inculpating the

petitioner, which theory should stand the test of final

argument without the military judge’s assistance in this

instruction.

The issues presented by this petition were raised

before the Court of Military Review and the Court of

Military Appeals. On mandatory review, the Air Force

Court regarded the case as one involving evidentiary

sufficiency and its decision was generally limited to that

issue. The Court of Military Appeals granted discre-

7

tionary review on eight issues, 22 M.J. 379 (C.M.A.

1986), but chose to address only the question of its ap-

pellate review standard and the sufficiency of the

evidence. 25 M.J. 140 (C.M.A. 1987).

REASONS FOR GRANTING THE WRIT

Suppose that an accused is charged with a theft to

which there were no eyewitnesses, and the only

evidence against him is circumstantial in nature. Con-

cerned about inferences which the jury would draw

from the existing evidence against him, this accused

seeks at trial to offer demonstrative evidence to negate

the inferences to be drawn from the evidence, but the

trial judge’s ruling prohibits him from introducing the

evidence. Suppose further that on appeal the appellate

court, in affirming his conviction, relies upon the very

inference the accused sought to rebut. Such is precisely

what transpired in the case at bar. The fact finder at

trial was never shown the true properties of the powder

the government alleged was used to dust the money

that was taken, and the jury and the appellate courts

have been left to speculate what happened.

I

Chambers v. Mississippi, 410 U.S. 284 (1973), and its

progeny have established that due process requires that

a defendant be able to present reliable and relevant

evidence in his defense, notwithstanding rules of pro-

cedure and evidence to the contrary. Stating that “few

rights are more fundamental than that of an accused to

present witnesses in his own defense,” this Court held

that a state hearsay rule could not be applied so as to

bar testimony that a person other than the defendant

had repeatedly confessed to the crime of which the

8

defendant was accused. Jd. at 292-293, 302-303. While

the Court recognized that a defendant’s right to present

evidence could be limited by appropriate rules of pro-

cedure and evidence, it found that the particular

evidence was both reliable and critical to the defense,

and that its exclusion violated the defendant’s right to

an effective defense. Jd., at 302. Other cases have

similarly held that the exclusion of reliable, material,

and critical evidence is a violation of due process. See,

e.g., Crane v. Kentucky, 476 U.S. 683 (1986) (reversing

conviction for excluding evidence of cricumstances sur-

rounding confession); Cf., Washington v. Texas, 388

U.S. 14 (1967) (striking down Texas statute prohibiting

the testimony of defendant’s alleged accomplices); Rock

v. Arkansas, 107 S.Ct. 2704 (1987) (striking down state

rule preventing defendant from testifying on issues

previously the subject of his hypnosis); United States v.

Poholt, 827 F.2d 889 (3d Cir. 1987) (Insanity Defense

Reform Act could not constitutionally restrict the

defendant’s right to offer expert testimony negating

specific intent element of the crime).

_ In this case, had the jurors seen the MBC powder in

its application, with its properties of dispersion and

adherence over a wide area to anything it touches,

either through in court demonstration or through

testimony regarding such an experiment, it would have

been abundantly clear that the government’s theory of

the selective and extremely narrow discovery of stains

in the places they claimed could not have occurred. A

powder simply will not be inside the plastic insert of a

wallet and not elsewhere on that wallet. A powder will

not be present in the plastic flap of a checkbook and not

elsewhere, especially if there is no evidence of powder

stains on the paper side but only, presumably, on the

plastic side, without staining the paper against which it

is pressed. The failure and inability of the jury to ap-

9

preciate these incongruities, caused by the exclusion of

the defense’s demonstrative evidence, directly caused

petitioner’s conviction. One can scarcely imagine

evidence more critical to the defense than that which

would show the implausibility of the government theory

of the case and which would controvert the wrongful

taking element of the offense.

To justify -his ruling, the trial judge relied on

~ Mil.R.Evid. 403 (identical to the federal rule) and the

anomalous proposition that the defense experiments

(which had been conducted prior to trial) could not

duplicate the conditions of the instant theft because

there was no evidence of how the thief handied the

money. (R. 239-240). Obviously, no one knows how the

thief took the money. But to follow the judge’s logic, if

one posits a clever thief, any evidentiary inconsistency

would be resolved against the accused. Any experiment

of this nature would be precluded, and the burden of

proof would be shifted. In fact, the point of the experi-

ment was to show the characteristics of the powder and

the corresponding inconsistency with the government’s

theory of the case, not to mislead the jurors as to the

manner of the taking. A second point is that evidence of

experiments need not duplicate the conditions of the

event they purport to demonstrate; they need only be

similar. Atkins v. United States, 240 F.2d 849 (5th Cir.

1957), cert. denied, 357 U.S. 974 (1957), reh. denied, 354

U.S. 943 (1957); see also, Moore v. Chesapeake & O. Ry.

Co., 493 F. Supp. 1252, 1266 (S.D. W.Va. 1980), aff'd,

649 F.2d 1004 (4th Cir. 1981). Finally, Chambers clearly |

stands for the proposition that evidentiary rules like

Mil.R.Evid. 4038, on which the judge here relied, must be

subordinated to an accused’s constitutional right to pre-

sent reliable evidence in his own defense. 410 U.S. at

302.

The constitution guarantees criminal defendants “a

meaningful opportunity to present a complete defense.”

California v. Trombetta, 467 U.S. 479, 485 (1984). An

10

essential component of the procedural fairness em-

braced by this guarantee is an opportunity to be heard.

In re Oliver, 333 U.S. 257, 273 (1948). That opportunity

was an empty one in this case because the evidence ex-

cluded by the judge was so central to petitioner’s claim

of innocence. There was no adequate justification for

the exclusion of this evidence, and petitioner was un-

constitutionally deprived of his basic right to have the

prosecutor’s case encounter and “survive the crucible of

meaningful adversarial testing.” United States v Cronic,

A66 U.S. 648, 656 (1984).

I

Article 66(c) of the Code places upon the Air Force

Court of Military Review the responsibility to “weigh

the evidence, judge the credibility of witnesses, and

determine controverted questions of fact” in what is

essentially a de novo review of the record of trial. 10

U.S.C. § 866(c) (1982). Where that court is “not con-

vinced beyond a reasonable doubt” of guilt, it is obliged

to set aside a finding of guilt. See, e.g., United States v.

Adam, 20 M.J. 681, 683 (A.F.C.M.R. 1985). United

States v. Taliau, 7 M.J. 845, 848 (A.C.M.R. 1979). Con-

gress has specifically empowered courts of review “to

make findings of fact opposite to those made at the trial

level.” United States v. Yeager, 15 U.S.C.M.A. 226, 35

C.M.R. 198, 199 (1965). United States v. Sikorski, 21

U.S.C.M.A. 345, 45 C.M.R. 119, 122 (1972). There must

however, be evidence in the record to support such fac-

tual findings.

As noted supra, the Air Force Court of Military

Review in its decision opined that:

.. appellant could have picked up the money-

bearing envelope without touching the bills, and

thereafter folded it in half several times with the

1]

exposed portion of the bills toward the inside of the

fold. In this manner, the folded envelop could be

secreted in a pocket of his checkbook underneath

the blank checks without his skin ever coming in

direct contact with the MBC on the bills. This would

also prevent the money from coming in direct con-

tact with the interior of the checkbook; only that

MBC which sifted down within the folding envelope

might contaminate the interior of the checkbook

slip op. at 5. (emphasis added). Aside from underscoring

the grievous nature of the error in excluding the

defense evidence relating to the properties of the MBC

powder, the above factual rendition is no more than a

wholly speculative hypothesis of guilt which is not more

compelling than the other evidence in the case consis-

tent with innocence. Apart from the fact that there was

ready access to the room by other persons besides peti-

tioner (cadets are not generally permitted to lock their

dormitory rooms), the evidence in this case, even

without the demonstration of the action of the powder

and evaluated solely through Special Agent Doerr’s

description of how the powder acted on him when he

dusted the bills, indicates that it is more likely that

whatever was supposedly taken from _petitioner’s

checkbook did not come from the checkbook at all. The

absence of any powder in the checkbook after the most

rigorous examination of it in the government laboratory

leads to no other conclusion. Clearly, the Court of

Review had difficulty explaining the absence of powder

in the checkbook (or the wallet) and contrived an ex-

planation in order to affirm a conviction. Courts and

juries must evaluate the case based on what they have

heard or had presented to them, not the case they would

12 re

wish they had heard based on what could have been. The

candid although somewhat naive analysis of the Air

Force Court conspicuously demonstrates a failure to ap-

ply the required reasonable doubt standard to the

evidence in the case. In re Winship, 397 U.S. 358 (1970);

Cf., Jackson v. Virginia, 443 U.S. 307 (1979). Moreover,

this Court has implicitly rejected the use of hypotheses

such as that employed by the Court of Review here in

the less stringent context of administrative de novo

review. Woodby v. INS, 385 U.S. 276, 279 (1966).

We are mindful that in its opinion the Court of Review

recited the talisimanic incantation that it had applied

the beyond a resonable doubt standard. But its defective

and unprecedented reasoning in the use of a factually

unsupported hypothetical scenario to sustain the trial

court’s finding belies any assertion or label that the

proper standard was applied. Of equal importance, the

Air Force Court’s resort to the use of a hypothetical

highlights the prejudice to petitioner flowing from the

exclusion of demonstrative evidence. Absent evidence

relating to the characteristics of MBC, both appellate

courts below were deprived of the ability to accurately

assess the implausibility to the government’s case. The

prejudice was then compounded when both of those

courts iterated the same, untested facts to uphold peti-

tioner’s conviction.

The Court of Military Appeals, in particular, misap-

prehended the instant issue. That Court was not asked,

as its decision would suggest, to review the sufficiency

of the evidence. Rather, petitioner complained of the

review court’s faulty reasoning in its purported applica-

tion of the beyond a reasonable doubt standard. The

Court of Military Appeals’ misinterpretation of the er-

ror asserted herein and concomitant reliance on the

same hypothesized and untested version of events thus

did nothing to cure the Court of Review’s flawed

methodology. ;

‘13 -

There is no debate about the standard of appellate

review to be employed by the service Courts of Military

Review. Based on an independent review of the entire

record, they must be convinced of an accused’s guilt

beyond a reasonable doubt. Article 66(c), 10 U.S.C.

§ 866(c) (1982). Instead of analyzing the existing record

before it, that court discussed a theory of guilt not

presented at trial. In so doing they failed to conduct

their review utilizing the beyond a reasonable doubt

standard appropriate for fact finding bodies in criminal

cases and deprived petitioner of due process of law.

Ill

As a general proposition, so called “consciousness of

guilt” instructions are proper where an accused’s ex-

culpatory conduct is shown to be untrue at trial and

therefore leads to an inference of the commission of a

prohibited act. Wilson v. United States, 162 U.S. 613

(1896); United States v. McDougald, 650 F.2d 532 (4th

Cir. 1981); II J. Wigmore, Evidence, § 273 at 106 (3d ed.

1940). It is also true however, that such instructions

must comport with due process. See, e.g., United States

v. Sanchez, 790 F.2d 245, 252 (2d Cir. 1986); Cf,

Mullaney v. Wilbur, 421 U.S. 684 (1974).

Instructions which shift the burden of proof to an ac-

cused are violative of due process of law. Mullaney,

supra, 421 U.S. at 701-703. In a line of cases beginning *

with Mullaney, this Court has repeatedly invalidated

burden shifting instructions which have the effect of

causing an accused to prove (or disprove) an ingredient

of the offense. See, Sandstrom v. Montana, 442 U.S. 510

(1979); Francis v. Franklin, 471 U.S. 307 (1985); Cf,

Patterson v. New York, 482 U.S. 197 (1977).

In Sandstrom, the Court focused on “the way in which

a reasonable juror could have interpreted the instruc-

tion,” 442 U.S. at 514, and concluded that the mere

14

possibility of prejudice was sufficient to justify reversal.

Id., at 526. The State’s harmless error argument was re-

jected. See also, Connecticut v. Johnson, 460 U.S. 73, 81

(1983); but Cf, Rose v. Clark, 478 U.S , 106 S.Ct.

3103 (1986).

The latest in this line of cases, Francis v. Franklin,

supra, also involved reversing the defendant’s convic-

tion because of a Sandstrom, burden-shifting presump-

tion on an element of the offense. 471 U.S. at 312-313.

In so ruling the Court highlighted the distinction be-

tween mandatory presumptions and permissive in-

ferences. Id., at 314-315; see, Ulster County Court v.

Allen, 442 U.S. 140 (1979). In contrast to the presump-

tions in the Mullaney, Sandstrom, and Francis line of

cases, permissive inferences run afoul of the Due Pro-

cess Clause only if the suggested conclusion is not one

that reason and common sense justify in light of the pro-

ven facts before the jury. Ulster County Court, supra,

442 U.S. at 157-163.

The synthesis of the Supreme Court’s opinions in this

area is that a criminal accused, as a matter of constitu-

tional due process, may not be saddled with the burden

of establishing the absence of essential facts con-

stituting the crime charged, but may be required to

prove facts that are collateral and wholly independent

thereof, such as those constituting an affirmative

defense.

The instruction as given by the trial judge in this case

violates several of the foregoing precepts. Initially,

because the instruction here related to evidence ad-

duced at trial, an adequate factual predicate and reason-

ed nexus to inferred facts must exist before a con-

sciousness of guilt instruction is proper in the first in-

stance. See., e.g., United States v. Grandmont, 680 F.2d

867, 869 (Ist Cir., 1982); United States v. Sanchez,

supra. In this case such predicate was absent, for peti-

Di aesaenieneeiasmaiamamiaiieaiacaiacaiiaaiaiaaillals

15

tioner’s statements to other cadets and Captain Steele

were not exculpatory statements which were shown at

trial to be false or in contradiction to the facts of the

case. Petitioner's statements were merely inconsistent

with his own in court testimony and that of these other

witnesses. Thus, the necessary factual predicate re-

quired for an instruction of this nature may not fairly be

said to have existed. More importantly though, the

tenor of the instruction was such that conceptually the

judge was instructing the jury on the government's

theory of the case. While an instruction that the jurors

must weigh and judge the credibility of witnesses in

determining controverted questions of fact may have

been in order, the instant instruction essentially told the

jury that petitioner had made false exculpatory

statements which an innocent person would not make.

Petitioner was thus singled out by the trial court as a

witness whose testimony was not to be believed. This is

particularly true if one regards “the way in which a

reasonable juror could have interpreted the

instruction.” Sandstrom, supra, 442 U.S. at 514.

Just because the prosecution and defense evidence

disagree is no reason to conclude, as the instruction and

then inevitably the jurors did, that petitioner's asser-

tions were “false.” To say that the judge’s instruction

can withstand constitutional scrutiny is to turn a blind—

eye to the reasoned and common sense justification re-

quired of inferential matters such as consciousness of

guilt. Ulster County Court, supra. Given the posture of

the evidence, there was not existent even the degree of

rationality between the facts proved and those to be in-

ferred which would have been required was this a case

of statutory inference. See, Tot v. United States, 319

U.S. 463 (1943); United States v. Gainey, 380 U.S. 63

(1965). Finally, the effect of the instruction was to put

upon petitioner the insurmountable burden of having to

16

negate the predetermined falsity of his own testimony.

Thus, the prejudicial impact of this burden shifting er-

ror is manifest.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. If petitioner’s conviction is

allowed to stand, a clearer miscarriage of justice is hard

to imagine.

COLONEL LEO L. SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

(202) 767-1562

Attorneys for Petitioner

Of Counsel: -

MAJOR WILLIAM H. LAMB

Wright-Patterson Air Force Base,

Ohio 45433

—s

NOVEMBER 1987

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS.

No. 54,177.

ACM 24656.

UNITED STATES, APPELLEE,

Uv.

DONALD C. ODEGARD, JR., CADET First CLASS

¥ U.S. AIR FORCE, APPELLANT.

Sept. 30, 1987

OPINION OF THE COURT

PER CURIAM:

A general court-martial convened at the United

States Air Force Academy on June 22 and 23, 1984,

convicted appellant, a cadet, of violating Article 121,

Uniform Code of Military Justice , 10 U.S.C. § 921, by

wrongfully “steal[ing] four (4) five-dollar bills” from a

fellow student. He was tried by members, who found

him guilty despite his pleas. He was sentenced to be

dismissed to be confined for 2 months, and to forfeit all

pay and allowances. The convening authority approved,

and the Court of Military Review affirmed, the findings

and sentence. We granted review on eight issues. *

* The Issues are:

I. WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED BY APPLYING THE

WRONG LEGAL STANDARD IN AFFIRMING AP-

(1a)

2a

Il.

III.

IV.

PELLANTS CONVICTION IN THAT THE COURT

IN EXERCISING ITS FACTFINDING POWER

UNDER ARTICLE 66(c), U.C.M.J. FAILED TO

EVALUATE THE EVIDENCE BASED ON A

REASONABLE DOUBT STANDARD AND _IN-

STEAD USED A HYPOTHETICAL CONSISTENT

WITH GUILT WHERE SUCH HYPOTHETICAL

WAS NO MORE REASONABLE THAN THE

EVIDENCE CONSISTENT WITH INNOCENCE.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY DENYING A DEFENSE REQUEST

TO CONDUCT CERTAIN DEMONSTRATIONS

BEFORE THE COURT MEMBERS.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY GIVING OVER DEFENSE OBJEC-

TION A “CONSCIOUSNESS OF GUILT” INSTRUC-

TION.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY ADMITTING OVER DEFENSE OB-

JECTION PROSECUTION EXHIBIT 2, A WALLET

BELONGING TO THE ACCUSED, WHERE THE

OFFICE OF SPECIAL INVESTIGATION AGENT IN

CHARGE OF THE INVESTIGATION TESTIFIED

THAT HE RUBBED DOWN THE WALLET WITH A

KIMWIPE FOR THE PURPOSE OF OBTAINING

EVIDENCE OF A BLUE STAIN THAT HE

THOUGHT AT THE TIME THAT HE OBSERVED A

VERY LIGHT BLUE SMEAR ON THE KIMWIPE

AND SO TESTIFIED BEFORE THE COURT

MEMBERS, THAT HE THEN THREW THE KIM-

WIPE IN THE TRASH BECAUSE IT WAS NOT IN

THE VIEW OF THE AGENT “EVIDENCE,” THAT

HE ADMITTED AT TRIAL THAT IT WOULD BE

HELPFUL TO KNOW WHAT WAS ON THE KIM.-

WIPE, AND WHERE THE LABORATORY

THEREAFTER WAS UNABLE TO IDENTIFY THE

STAIN ON THE PLASTIC INSERTS OF THE

WALLET BECAUSE THERE WAS INSUFFICIENT

QUANTITY TO TEST AND WHERE THERE WAS

PREJUDICE TO APPELLANT BY VIRTUE OF THE

3a

Thefts had occurred in cadet’s rooms, and the in-

vestigation focused upon appellant. A special agent of

the Office of Special Investigations (OSI) made arrange-

ment with appellant’s roommate to plant money in that

person’s desk. The money had been treated with

methylene blue chloride (MBC), chemical that turns blue

when it comes in contact with moisture. Ultimately, the

money was taken from the roommate’s desk without his

knowledge or consent. The ensuing investigation led to

discovery of traces of the chemical in appellant’s

checkbook, where he also routinely kept his money.

The Court of Military Review, in a very thorough and

detailed opinion, concluded:

[W]e see no other reasonable explanation for the

presence of MBC in appellant’s checkbook other

than the conclusion he stole the money from. . . [his

roommate's] desk drawer and at some point tem-

porarily stored it in his checkbook. We find this

FACT THAT EVIDENCE OF GUILT OF LARCENY

OF MONEY WAS BASED UPON STAINS

ALLEGEDLY OBTAINED FROM DUSTING

MONEY LATER REPORTED MISSING.

if WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY DENYING A _ DEFENSE

CHALLENGE FOR CAUSE AGAINST THE

MEMBER, CAPTAIN STEIN.

VI. WHETHER THE PRETRIAL ADVICE WAS

MISLEADING AND SUCH ADVICE PREJUDICED

APPELLANT WHOSE CASE WAS NOT CON-

SIDERED IN LIGHT OF ACCURATE INFORMA-

TION WHERE THERE WAS A DISAGREEMENT

BETWEEN THE ARTICLE 32 INVESTIGATION

OFFICER AND THE STAFF JUDGE ADVOCATE

ON AN ISSUE OF FACT.

Vil. WHETHER APPELLANT DID NOT RECEIVE EF-

FECTIVE ASSISTANCE OF COUNSEL.

Vill. WHETHER THE PETITION FOR NEW TRIAL

SHOULD BE GRANTED.

4a

evidence sufficient to support the trial court’s find-

ing of guilty.

Unpub. op. at 6.

Appellant asserts that the Court of Military Review

applied an improper standard in assessing the sufficien-

cy of the evidence. However, we note the following

language from the opinion:

The critical issue here, and one which was argued

vigorously before the court members, in appellate

briefs and in oral argument before us, then

becomes, whether the government met its burden

of proving the guilt of appellant beyond a

reasonable doubt. Although the prosecution had

only a limited amount of material circumstantial

evidence with which to work we believe they were

successful.

Id. at 5 (emphasis added). Thus, it appears that the

Court of Military Review did conclude that the evidence

was sufficient beyond a reasonable doubt to sustain the

conviction.

[1,2] We review questions of sufficiency of the

evidence to determine if there is “some legal and compe-

tent evidence from which a court-martial may find or in-

fer beyond a reasonable doubt those facts required by

law for conviction.” United States v. Harper, 22 M.J.

157, 161 (C.M.A. 1986); see Jackson v. Virginia, 4438

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Apply-

ing this standard, we conclude that the evidence as

outlined and analyzed by the court below is sufficient to

sustain a conviction for larceny.

We have reviewed the remaining issues raised by ap-

pellant and conclude that no error which “materially

prejudices ... [his] substantial rights” has been com-

mitted. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).

ba

Finally, turning to appellant’s petition for a new trial

based upon newly discovered evidence, we agree with

the Court of Military Review that the petition was not

properly filed. Unpub. op. at 6-7. We do not desire,

however, that appellant be denied the opportunity to

seek a new trial from the Judge Advocate General in ac-

cordance with established rules and procedures. Toward

this end, we note that Article 73 of the Code, 10 U.S.C.

§ 873, does not prescribe a particular form or particular

procedures to be followed. Accordingly, we hold that

the petition shall not be dismissed on the jurisdictional

basis that it was not timely filed.

The decision of the United States Air Force Court of

Military Review is affirmed. Appellant shall have 60

days from the date of this decision in which to conform

his petition to the requirements of R.C.M. 1210, Manual

for Courts-Martial, United States, 1984.

Judge SULLIVAN disqualified himself from par-

ticipation in this case.

6a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24656

UNITED STATES

VU.

CADET First CLASS DONALD C. ODEGARD, JR.,

FR 203-48-3718 UNITED STATES AIR FORCE

17 OCT 1985

Sentence adjudged 23 ‘une 1984 by GCM convened at

The United States A» Force Academy, Colorado.

Military Judge: Jeffrey W. Cook.

Approved sentence: Dismissal, confinement at hard

labor for two (2) months and forfeiture of all pay and

allowances.

Appellate Counsel for the Accused: Colonel Leo L.

Sergi and Major William H. Lamb. Appellate Counsel

for the United States: Colonel Kenneth R. Rengert, Col-

onel Andrew J. Adams, Lieutenant Colonel Donal F.

Hartman, Jr., and Lieutenant Colonel William H. Seck-

inger, USAFR.

Before

FORAY, MURDOCK, and O’HAIR

Appellate Military Judges

DECISION

O’HAIR, JUDGE:

Contrary to his pleas, the appellant was found guilty

of stealing four five dollar bills from the desk drawer of

7a

his roommate at the United States Air Force Academy

on 3 February 1984. He was sentenced to a dismissal

from the service, confinement for two months and total

forfeitures. On appeal, he has presented a number of

asignments of error, including a request for a new trial.

The primary focus of this appeal, however, addresses

his assertion of the insufficiency of the evidence to con-

vict him of the one charge and specification.

oy

As developed at trial, the facts suggest that prior to

February, 1984, there was a problem at the Academy

with money being taken form the cadets’ rooms. The ap-

pellant’s air officer commanding, Capt Steele, contacted

the Office of Special Investigation (OSI) regarding this

matter and they decided to “plant” some money in the

appellant’s room in an attempt to catch the thief. This

necesarily involved requesting the appellant’s room-

mate, Cadet Pizzarello, to assist them. Before the four

five dollar bills were placed in the room, Special Agent

(SA) Doerr dusted each of them with methylene blue

chloride (MBC). This is a nearly invisible powder which,

when it comes into contact with something moist or

wet, turns blue. Next, the money was placed in an

envelope which had been fabricated by SA Doughman

so that it was identical in size to the money; and only the

top portion of one end of the enveloped was cut away so

that the edges of the bills were exposed when viewed

from the top of the envelope, but not from the bottom.

The intent of this scheme was that the thief’s hands

would become contaminated by the MBC when he took

the money and the natural moisture of the hands would

cause the MBC to turn blue and stain the hands the

same color.

Pizzarello was not informed about the MBC, but was

only instructed not to touch the bills. He was further

8a

told to take the money to his room where, in the

presence of the appellant, he was to display the money

and then place it in his top desk drawer. These instruc-

tions were followed at mid-day on Thursday, 2 February

1984, at which time he told appellant he had some extra

money but he would be unable to spend it that weekend.

Pizzarello last saw the money in the desk drawer at ap-

proximately 1145 hours on Friday, 3 February when

both he and appellant were preparing to leave their

room and go to lunch. Pizzarello returned to his room

following lunch, but since the appellant was there he did

not look in the drawer. Both roommates had a 1300

hours class that day and Pizzarello was the first to leave

the room for class. At 1330 hours, while both cadets

were in class, Capt Steele discovered the money had

been removed from the drawer.

Several hours later on 3 February, Capt Steele sum-

moned appellant and Cadet Weeth to his office. He in-

formed then about the theft of the money from Piz-

zarello’s desk drawer and asked if they had seen the

missing money. Simultaneous with this he surreptitious-

ly examined their hands, looking for blue stains. He saw

no stains. Capt Steele continued his informal investiga-

tion of the theft on the following morning during a

Saturday morning inspection. In conjunction with an in-

spection of the cadets’ rooms, he also conducted a

manicure inspection of the occupants of those rooms in-

spected. Appellant’s room was among those inspected

and Capt Steele detected no blue stains on either ap-

pellant’s hands or on any other hands he viewed.

OSI participation in this operation did not resume un-

til Monday morning, 6 February, when appellant and

Pizzarello were summoned to the OSI office for ques-

tioning by SA Doerr. Following an advisement of

rights, appellant denied any knowledge about either the

theft or the money and he consented to the search of his

Ya

room. To aid him in locating traces of MBC, SA Doerr

_ used paper tissues called kimwipes which were dam-

pened by spraying them with liquid glass cleaner. After

SA Doerr wiped a section of appellant’s wallet with a

kimwipe, he noted a “very light blue smear or smudge”

on it. He threw this kimwipe in the trash can, but re-

tained the wallet. Seeing there was no money in the

wallet, SA Doerr remarked to the appellant that he was

broke. Appellant responded that he keeps his money in

either his pocket or checkbook and not in his wallet. SA

Doerr then asked to see his checkbook. Using a clean,

dampened kimwipe, SA Doerr wiped the exterior of the

checkbook and reported he found no blue stains.

However, after he thoroughly wiped “underneath the

side with the cardboard backing,” a plastic area which

was underneath the checks, he remarked there was an

“instant blue smear all over my kimwipe.” The smear

was described as being round and about the size of a

nickel. No other traces of blue were detected on the kim-

wipes after other articles and areas of the room were

wiped.

SA Doughman, while assisting in the search of the

room, asked appellant to place his hands in the sink

under running water. After he complied, the agent

detected what he believed was a light blue stain in the

crevice of the palm of appellant’s hands. SA Doerr also

observed the wet hands and he testified he could see

where the MBC had combined with the water to turn

the water blue in the creases of his hands. He then

asked appellant, “What’s that?” and appellant’s only

response was, “You mean the blue stuff?” Capt Steele

remembers hearing appellant make this remark,

however, SA Doughman does not. Neither of the agents

wiped appellant’s hands with a kimwipe in an attempt to

absorb any MBC which may have been present nor did

they wipe the interior of the sink for the same purpose.

10a

The checkbook, to include the checks and check

register, the wallet, the kimwipe with the blue smear,

and a sample of the MBC used by OSI were sent to a

laboratory. The first three items were examined for the

presence of a chemical which was identical to that found

in the OSI sample of MBC and such a presence was con-

firmed on only the kimwipe. No MBC was found on the

wallet or the checkbook and its contents. This fact was

also confirmed by an analysis by a chemist who was

hired by appellant to conduct a similar examination.

An additional bit of prosecution evidence came from

Cadet Weeth who testified regarding a conversation he

had with appellant during March, 1984. Appellant asked

him if he knew where the marked money had been

located in his room. When Weeth explained that he

believed it was in Pizzarello’s top desk drawer, appellant

turned to him and said, “That’s right,” and added that it

was in an enveloped sitting on a Playboy magazine. He

said he had read the Playboy two or three times and

could have gotten whatever dye or substance on his

hands at the time he read it.

The appellant testified in his own behalf and

strenuously maintained his innocence. He conceded he

heard Pizzarello’s remark on 2 February about having

some extra money but because appellant was sitting

with his back to Pizzarello at the time of the remark, he

did not know where the money was being kept. During

cross-examination, he explained that he did not tell

Weeth he had gotten the Playboy magazine from Piz-

zarello’s top desk drawer, but rather Pizzarello had per-

sonally given him a couple of Playboy’s to read. Ap-

pellant also explained he does not carry much cash, but

writes checks for most purchases; and when he does

have cash, he carries it in his wallet, contrary to what

SA Doerr testified. Furthermore, appellant maintained

he was silent when Doerr asked him why the water on

lla

his hands had turned blue. Appellant also insisted that

Capt Steele did not inform him that money had been

stolen from Pizzarello until early Monday morning, and

not on Friday afternoon.

One of appellant’s instructors and three cadets

testified they had been with appellant either later in the

day on 3 February or during that weekend. None of

them saw any blue stains on his hands or fingers.

Although none of them were aware of the theft and

were not looking for blue stains, all of them were

positive they would have noticed such stains if there had

been any on his hands.

A physician assigned to the Academy testified he had

been visited by appellant in May, 1984, and asked to ex-

amine appellant’s hands. The witness notice blue veins

in the palms of appellant’s hands which were in various

patterns and no more prominent than those of other

fair-skinned individuals.

The appellant called a forensic chemist who had ex-

amined the government’s evidence for the presence of

MBC and he could find none. He was asked a series of

hypothetical questions based upon testimony by Piz-

zarello regarding his handling of the bills. Specifically

he was asked whether there would be traces of MBC ina

desk drawer if someone had either blown on bills dusted

with MBC while holding them over the drawer or had

rubbed the bills together between one’s fingers over the

drawer. He opined there probably would be MBC con- —

tamination in the drawer unless it had been removed.

He then testified he completely wiped out Pizzarello’s

top desk drawer and found no evidence of MBC. He also

testified that it usually takes two to three days for some-

one to remove MBC from one’s hands; the most common

residual stains would be in the cuticles. He examined the

stain pattern on the kimwipe SA Doerr used on the

checkbook and opined it was not consistent with a

Lepitniemnineaecsieisecaniatiaiinsaeanaiaensnmmeeiieaemeiiiiae

12a

“wiping” movement as described by SA Doerr, but more

like a “blotting” movement. With respect to the paper

check register he indicated it would be impossible to

remove evidence of MBC entirely from that paper,

whereas it would be possible to remove it completely

from the plastic portions of the checkbook. From this in-

formation it was to be concluded the check register was

never contaminated with MBC.

The final defense witness was appellant’s father who

confirmed that his son carries small amounts of money

in his wallet, but predominantly writes small checks or

uses credit cards for purchases.

Il

The critical issue here, and one which was argued

vigorously before the court members, in appellate briefs

and in oral argument before us, then becomes, whether

the government met its burden of proving the guilt of

appellant beyond a reasonable doubt. Although the

prosecution had only a limited amount of material, cir-

cumstantial evidence with which to work, we believe

they were successful.

The evidence showed that appellant had knowledge of

the presence of some money in Pizzarello’s desk,

although he disavowed knowing exactly where it was

located. Appellant also had the opportunity to steal the

money on Friday, 3 February, after he returned from

lunch and before reporting to his first afternoon class.

The absence of any blue stains on his hands and fingers

that day or the next can be explained by noting the pro-

tection afforded by the envelope SA Doughman

fabricated. As we view the facts, appellant could have

picked up the money-bearing envelope without touching

the bills, and thereafter folded it in half several times

with the exposed portion of the bills toward the inside of

the fold. In this manner, the folded envelope could be

13a

secreted in a pocket of his checkbook underneath the

blank checks without his skin ever coming in direct con-

tact with the MBC on the bills. This would also prevent

the money from coming in direct contact with the in-

terior of the checkbook; only that MBC which sifted

down within the folded envelope might contaminate the

interior of the checkbook. It was this small amount of

contaminant which SA Doerr found on his kimwipe

after he carefully and thoroughly wiped all areas within

the checkbook. This thoroughness on his part can ex-

plain why no residue was located on the checkbook

when it was re-examined at the laboratories.

We certainly have no way of knowing the exact man-

ner in which the money was handled after it was re-

moved from Pizzarello’s drawer. Further, we place little

weight on testimony that traces of suspected MBC were

found either somewhere on the wallet or on appellant's

hands on Monday, 6 February. However, one fact re-

mains irrefuted and that is that traces of MBC were

found in appellant’s checkbook by SA Doerr. The

agent’s direct testimony regarding this discovery is as

follows:

Q After you went back to pick up the checkbook

what did you do?

A I did the same thing I did with the wallet. I ob-

tained a fresh kimwipe, sprayed the kimwipe. |

may have sprayed some of the spray directly on

the outside of the checkbook and then also some

on the kimwipe. I found no blue stains on the

outside. On the inside, however, inside the flaps,

as you open the checkbook you have your two

flaps here for your deposit book and your

checks. Underneath the side with the cardboard

backing I cleaned out that inside, pulled it out

and there was an instant blue smear all over my

kimwipe.

hater nme

l4a

Q Going back, when you say you took, did you take

a fresh kimwipe? A clean one?

Yes, sir, I did.

Did you use the same spray you were using

before?

Yes, sir.

When you wiped the outside of the checkbook

what did you find?

Nothing.

And then you wiped the inside of the checkbook?

Yes, sir.

Considering all of the evidence presented to the court,

we see no other reasonable explanation for the presence

of MBC in appellant’s checkbook other than the conclu-

sion he stole the money from Pizzarello’s desk drawer

and at some point temporarily stored it in his

checkbook. We find this evidence sufficient to support

the trial court’s finding of guilty of the charge and

specification. Article 66(c), Uniform Code of Military

Justice (U.C.M.J.); United States v. Frierson, 20

U.S.C.M.A. 452, 43 C.M.R. 292 (1971); United States v.

Landes, 17M.J. 1092 (A.F.C.M.R. 1984).

FOr OYF &£

Ill

The only other assignment of error we choose to ad-

dress is: THE PETITION FOR NEW TRIAL SHOULD

BE GRANTED. This assignment is based upon a docu-

ment entitled “Verified Petition for Dismissal of

Charges, or in the Alternative, for a New Trial,” which

was submitted to the convening authority before he

took action on this case. This document was signed,

under oath, by the civilian attorney who represented ap-

pellant at trial and it contains a number of affidavits

designed to support his argument. The convening

authority did not afford appellant the desired relief and

l5a

this document was submitted to this Court pursuant to a

MOTION TO FILE DOCUMENT AND TO CONSIDER

SAID DOCUMENT AS A PETITION FOR NEW

TRIAL. Appellate defense counsel, in that motion,

acknowledged that the normal procedure for presenting

this document to the Court, as prescribed by Article 73,

U.C.M.J., would be to have it referred to us by the

Judge Advocate General. Counsel reasoned that to re-

quire compliance with this procedure would be elevating

form over substance as the document was already

physically before the court as an allied paper. This mo-

tion was denied because it was not properly addressed

nor was it in the proper format, citing Article 73,

U.C.M.J., and R.C.M. 1210.

The former reference provides:

Any time within two years after approval by the

convening authority of a court-martial sentence,

the accused may petition the Judge Advocate

General for a new trial on the grounds of newly

discovered evidence or fraud on the court. If the ac-

cused’s case is pending before a Court of Military

Review or before the Court of Military Appeals, the

Judge Advocate General shall refer the petition to

the appropriate court for action. Otherwise the

Judge Advocate General shall act upon the petition.

Further procedural requirements for such a petition are

found in R.C.M. 1210(c) wherein it prescribes that the

“... petition for a new trial shall be written and shall be

signed under oath or affirmation by the accused, by a

person possessing the power of attorney of the accused

for the purpose, or by a person with the authorization of

an appropriate court to sign the petition as the

representative of the accused.”

Based upon the above statutory and implementing

criteria, this Court finds the petition for new trial was

not properly addressed, not properly referred to this

l6a

Court and, more importantly, procedurally deficient in

that it was not signed under oath, by either the ap-

pellant, a person with a power of attorney for that pur-

pose, or by a person appointed by a court. For these

reasons we find the petition is not properly before this

Court and thus we do not address the information con-

tained therein. The U.C.M.J. and the implementing

Manual for Courts-martial, 1984, prescribe rules for the

operation of our military justice system and it is our

duty to insure compliance. Our decision today, however,

does not in any way impede appellant from resubmitting

this document in the proper format.

We have considered the remaining assignments of er-

ror and consider them to be without merit.

The finding of guilty and the sentence are

AFFIRMED.

FORAY, Senior Judge, and MURDOCK, Judge,

Concur.

OFFICIAL:

CHARLES L. WILLE

Charles L. Wille

Captain, USAF

Chief Commissioner

US GOVERNMENT PRINTING OFFICE 1987-197 264/62019