Opposition Brief — Odegard v. United States

No. 87-879

OCTOBER TERM, 1987

DONALD C. ODEGARD, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Lt. Col., OJAG, USAF

MARC VAN Nuys

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

Headquarters, United States Air Force

Bolling Air Force Base

Washington, D.C. 20332-6128

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QUESTIONS PRESENTED

1. Whether the trial judge abused his discretion by ex-

cluding evidence offered by the defense concerning out-of-

court experiments.

2. Whether the Air Force Court of Military Review

applied the wrong standard of review in determining

whether the evidence was sufficient to support petitioner’s

conviction.

3. Whether the trial judge’s instruction on con-

sciousness of guilt shifted the burden of proof to peti-

tioner On an essential element of the crime.

(1)

TABLE OF CONTENTS

Page

aE EDEN cect se’ g VES Wale Woes iaae #0 68 ke |

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ee ah ling ae dw oo wo ack'® dai Wow wk |

re ag ees 2 4 a ic eid eo vo aco a ca bs 7

i i tele Sra Oe ek base eee ee 14

TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ............. 7

Collins v. B.F. Goodrich Co., 558 F.2d 908 (8th Cir.

Nene Tn ee daa chase eae e's 7

Francis v. Franklin, 471 U.S. 307 (1985) ............... 12

Government of Virgin Islands v. Testamark, 570 F.2d

REESE TE 13

Hall v. General Motors Corp., 647 F.2d 175 (D.C. Cir.

SS TGS EE 7

Holland v. United States, 348 U.S. 121 (1954) .......... 11

Jackson v. Taylor, 353 U.S. 569 (1957) ................ 10

Jackson v. Virginia, 443 US. 307 (1979) .. 2.000000... 10, 11

Mullaney v. Wilbur, 421 U.S. 684 (1975) . 2... ..0000.... 12

Patierson v. New York, 432 U.S. 197 (1977) ...... i crate 12

Renfro Hosiery Mills Co. v. National Cash Register Co.,

oe er) ae 7

Sandstrom v. Montana, 442 U.S. 510 (1979)... 00000... 12

Solorio v. United States, No. 85-1581 (June 25, 1987) .... 7

Taylor v. Illinois, No. 86-5963 (Jan. 25, 1988) .......... 7

United States v. Baran, 22 M.J. 265 (C.M.A. 1986) ...... 10

United States v. Bear Killer, 534 F.2d 1253 (8th Cir.),

cert. denied, 429 U.S. 846 (1976) ................... 13

United States v. Grandmont, 680 F.2d 867 (Ist Cir.

SE UGE SRS Ee ea 13

United States v. Hudson, 20 M.J. 607 (A.F.C.M.R.

ee whine aden 10

United States v. Landes, 17 M.J. 1092 (A.F.C.M.R.),

petition denied, 19 M.J. 22 (1984) .................. 10

(111)

lV

Cases — Continued: Page

United States v. Michelena-Orovio, 702 F.2d 496, on

rehearing, 719 F.2d 738 (Sth Cir. 1983), cert. denied,

IE St es a aa rer ie a oe 7

United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) ..... 10

United States v. Sanchez, 790 F.2d 245 (2d Cir.), cert.

Ge as ED 6 ag hiv ooo oad dh waa 13

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) .. 7

United States v. Vallejo, 541 F.2d 1164 (Sth Cir. 1976) ... 7

United States v. Van Steenwyk, 21 M.J. 795

PE oe Si Sec a bo eS ae Ae Bas ka d wisi 10

United States v. Wood, 550 F.2d 435 (9th Cir. 1976) ..... 13

Wilson v. United States, 162 U.S. 613 (1896) ........... 13

Constitution, statutes and rules:

U.S. Const. Amend. V (Due Process Clause) ........... 7

Uniform Code of Military Justice, 10 U.S.C. (& Supp. 1V)

801 ef seq.:

mp Me LR ae eee 2

oe a ee ree 9, 10

og a ee art err 1-2

Pe i koe eae oe bes ake hekes new sas 6

Wes Bs Ms HI a ne kaa daas hebens Ktadseees wien 6

Miscellaneous:

2 J. Wigmore, Evidence (3d ed. 1940) 2.0.2.0... -. as 13

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-879 ;

DONALD C. ODEGARD, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The decision of the Court of Military Appeals (Pet.

App. la-Sa) is reported at 25 M.J. 140. The decision of the

Air Force Court of Military Review (Pet. App. 6a-16a) is

unreported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on September 30, 1987. The petition for a writ of

certiorari was filed on November 30, 1987. The jurisdic-

tion of this Court is invoked under 28 U.S.C. (Supp. IID)

1259(3).

STATEMENT

Following a general court-martial at the United States

Air Force Academy in Colorado Springs, Colorado, peti-

tioner, a cadet at the Academy, was convicted of larceny

in violation of Article 121, Uniform Code of Military

(1)

2

Justice (UCMJ), 10 U.S.C. 921.' He was sentenced to con-

finement for two months, dismissal from the service, and

total forfeiture of pay and allowances. The convening

authority approved the sentence. The Air Force Court of

Military Review affirmed the findings and sentence (Pet.

App. 6a-16a). The Court of Military Appeals affirmed (id.

at la-Sa).

1. Prior to February 1984, a series of thefts of money

from cadets’ rooms at the Air Force Academy prompted

petitioner’s commanding officer, Captain Steele, to con-

tact the Air Force Office of Special Investigations (OSI) to

look into the problem (Pet. App. 7a). The investigation

focused on petitioner. On Thursday, February 2, 1984,

OSI Agent Doerr lightly dusted four five-dollar bills with

methylene blue chloride (MBC) powder? and packaged

them in an envelope. Doerr then arranged the envelope so

that portions of the bills where exposed to view (Tr.

106-107; PX 8). The envelope containing the dusted bills

was then given to Cadet Pizarrello, petitioner’s roommate.

Pizarrello was told not to touch the bills and to place them

in his top desk drawer while petitioner was watching (Tr.

81-82, 107, 110). Pizarrello was not told that the bills had

been dusted with MBC (Tr. 99, 108).

Pizarrello carried out his instructions that day, placing

the money in his top desk drawer while petitioner was

watching him trom nearby (Tr. 82-84, 144). Between 11:45

a.m. on February 3, when Pizarrello last saw the bills in his

desk drawer, and 1:30 p.m. that day, when Captain Steele

' As a cadet at the Aw Force Academy, petitioner was subject to

court-martial jurisdiction. Art. 24ay2), UCM, LO US LC. 802(a,2)

> MBC is a nearly invisible powder which turns blue when it comes

Into Contact With Moisture, such as perspiration on hands. It is used to

determine Who has come into contact with an item that is dusted with

the powder (Tr. 108).

checked the drawer, the bills disappeared (Tr. 88, 145).

Captain Steele informed petitioner and Cadet Weeth later

that day that the money was missing. At that time, he

noticed no blue stains on petitioner’s hands (Tr. 145,

149-150). That night petitioner and Pizarrello cleaned the

room to prepare for an inspection (Tr. 146). A manicure

inspection the next morning disclosed no blue stains on the

hands of any of Captain Steele’s cadets, including Pizar-

rello and petitioner (Tr. 146-147).

On Monday, February 6, Agents Doerr and Doughman

interviewed petitioner and searched his room with his con-

sent (Tr. 112). Petitioner denied knowing anything about

the money or the theft (ébid.). During the search, Agent

Doerr wiped petitioner’s wallet with a damp tissue called a

“kimwipe,” and detected a light blue smear on the tissue

(Tr. 114-115). Noticing no money in the wallet, Agent

Doerr remarked to petitioner that petitioner must be

broke. Petitioner replied that he carried his money in his

pocket or his checkbook (Tr. 116). Agent Doerr then

retrieved petitioner’s checkbook from his desk and wiped

the inside and outside of the checkbook with a kimwipe

(ibid.). After wiping the plastic inside flap of the

checkbook, Agent Doerr detected an “instant, blue smear”

on the kimwipe (Tr. 116-117, 182; PX 4).° At that point,

Agent Doughman asked petitioner to put some water on

his hands “to see if any blue stains would come out”

’ The blue substance on that kimwipe was subsequently determined

to bear the same physical and chemical properties as the MBC that

was used to dust the bills (Tr. 156, 160-161). The checkbook and the

wallet, when tested, disclosed no identifiable traces of MBC (Tr. 158,

245). However, the defense expert testified that wiping the checkbook

could remove all traces of MBC (Tr. 261), and the prosecution expert

noted that the wallet’s plastic inserts contained blue stains which were

visually similar to MBC, but were of insufficient quantity to perm

testing (Tr. 158-159).

4

(Tr. 119). Agent Doerr observed that the water in the

creases of petitioner’s palms turned faintly blue (ibid.),

and Agent Doughman noticed that a light blue stain ap-

peared in a crease of petitioner’s left palm (Tr. 133). Agent

Doughman was certain that the stain was not a blood vein

(Tr. 134). When Agent Doerr asked petitioner, “What’s

that?,” petitioner responded, “You mean the blue stuff?”

(Tr. 119, 149). Captain Steele was present during these

events, and he asked petitioner if he had ever seen the

money. Petitioner replied that he had not (Tr. 148).

In mid-March 1984, petitioner approached Cadet

Weeth, a former roommate, and asked him what Weeth

had told the OSI (Tr. 153). Later that day, petitioner again

approached Weeth and asked him if he knew where the

money had been placed in the room. Weeth replied that he

thought it had been in Pizarrello’s top desk drawer. Peti-

tioner said that that was right, that the package of money

was in the top desk drawer sitting on top of a Playboy

magazine (Tr. 154). Petitioner then st»ted that he had read

that Playboy two or three times and could have gotten

“whatever dye or substance” on his hands when he read the

magazine (Tr. 155). Pizarrello and others testified at trial

that Pizarrello always kept the Playboy magazine in the

bottom drawer of his desk (Tr. 89, 148-149, 154, 189).

Petitioner testified at trial and denied that he had stolen

the money (Tr. 185, 201). He also denied that he was

Standing next to Pizarrello on February 2 when Pizarrello

placed the money in his desk drawer (Tr. 172, 187, 199),

and he denied seeing Pizarrello place the money in the

drawer (/bid.). Petitioner also denied that Captain Steele

had told him about the theft on the afternoon of February

3 (Tr. 175, 193), and he denied telling Agent Doerr on

February 6 that he kept his money in his pocket or

checkbook rather than in his wallet (Tr. 190). Petitioner

also denied saying “You mean that blue stuff?” when

Agents Doerr and Doughman commented about the blue

coloring on his hands after he rinsed them (Tr. 191). He

aiso denied telling Cadet Weeth that the money had been

in Pizarrello’s top desk drawer or that he had taken a

magazine from the top drawer (Tr. 185, 189-190). Peti-

tioner testified that he saw only blue blood veins on his

hands after rinsing them (Tr. 181, 189, 191), and he

testified that he had said nothing about “the blue stuft” at

that time (Tr. 149, 191).

2. At trial, petitioner sought to introduce evidence

concerning the results of experiments conducted by a

defense expert and by petitioner’s father using MBC on

currency. The prosecution objected to that testimony on

the ground that the conditions of the experiment were not

sufficiently similar to the techniques used by the OSI to

treat the stolen bills with MBC (Tr. 217; AX 7). At a hear-

ing, the defense expert testified that he had conducted two

experiments. In the first one, he placed some currency ina

plastic bag that contained MBC powder in order to dust

the bills (Tr. 225). He then withdrew the bills with his

hands, placed them under the plastic flap of a checkbook,

touched the bills, and noticed MBC contamination (/bid.).

In the second experiment, the defense expert shook a

plastic container holding a small quantity of MBC and

three bills (Tr. 227). He then removed the bills, noticed

that his hands showed blue coloring, and placed the un-

packaged bills in the back of the checkbook, which caused

the checkbook to turn a “purplish blue color” (Tr.

227-228). The defense expert acknowledged, however, that

he was not aware of the method the OSI agep's had used

+ Medical testimony at trial showed that the veins in petitioner's

hands were not unusually prominent and that they ran in patteris tn-

consistent with the creases of his palms (Tr. 168-169).

6

to dust the bills or the amount of powder they had used

(Tr. 229, 232). He also acknowledged that the amount of

powder used would to some extent determine the amount

of MBC transferred to another object (Tr. 225-226, 229),

and that packaging the bills would reduce the transfer, as

would folding the package or covering the bills (Tr. 233).

He conceded that he was unaware of how the bills were

placed in the checkbook (Tr. 236), and he agreed that the

presence of a barrier between the checks and the plastic in-

terior of a checkbook would also reduce the transfer of

powder (Tr. 233).°

The defense also made an offer of proof concerning two

experiments conducted by petitioner’s father. In the first

experiment, petitioner’s father noticed blue coloring on his

fingertips after handling money treated with MBC powder

(Tr. 234-236). In the second, petitioner’s father shook

some bills in a plastic container holding MBC, withdrew

the bills, concealed four-fifths of the bills in a package,

placed them in the back of a checkbook, and obtained, in

detense counsel’s words, “contrary results to what the

agents did” (Tr. 238).

Relying on Mil. R. Evid. 403,° the trial judge declined to

allow the defense expert and petitioner’s father to testify

about their experiments. The court found that the defense

had not established a sufficient similarity between the ex-

periments and the facts of the case, and that the probative

value of the evidence was greatly outweighed by the

danger that it Would mislead the court-martial members

(Tr. 239-240). ty

> Petitioner testified that an old identification card had been placed

between the checks and the interior of the plastie cover ii tits

checkbook (Tr. 197-198).

Rule 403, Mail. R. bevid., is virtually identical to bed. R. vid. 403.

ARGUMENT

1. Petitioner contends (Pet. 7-10) that the trial judge

erred by excluding evidence of the out-of-court ex-

periments conducted by the defense expert and by peti-

tioner’s father.’ A trial judge enjoys broad discretion in

deciding whether to admit evidence of experimental tests

after determining the degree of similarity between the con-

ditions of the test and events in issue, and after balancing

the probative value of the evidence against the risk of con-

fusing or misleading the trier of fact. See, e.g., United

States v. Michelena-Orovio, 702 F.2d 496, 500, adopted

on rehearing en banc, 719 F.2d 738, 740-741 (Sth Cir.

1983), cert. denied, 465 U.S. 1104 (1984); Hai/ v. General

Motors Corp., 647 F.2d 175, 180-181 (D.C. Cir. 1980);

Collins v. B.F. Goodrich Co., 558 F.2d 908, 910-911 (8th

Cir. 1977); Renfro Hosiery Mills Co. v. National Cash

Register Co., 552 F.2d 1061, 1065-1066 (4th Cir. 1977);

United States v. Vallejo, 541 F.2d 1164, 1165 (Sth Cir.

1976). Petitioner’s claim that the trial judge abused his

discretion does not warrant review by this Court.

Petitioner argues (Pet. 8-9) that the defense experiments

would have shown that he could not have placed the stolen

bills in his checkbook, because there would have been

’ Petitioner contends that the trial judge’s ruling violated the Due

Process Clause, but petitioner did not rely on the Due Process Clause

at trial or in either the court of military review or the Court of Military

Appeals. Petitioner’s due process claim has made its debut in this

Court, and the Court should therefore decline to consider it. See, ¢.g.,

Solorio v. United States, No. 85-1581 (June 25, 1987), slip op. 15

n.18; Berkemer v. McCarty, 468 U.S. 420, 443 (1984). In any event,

the Due Process Clause does not add to petitioner’s claim. The denial

of a motion to introduce irrelevant, confusing, or misleading evidence

does not violate the Constitution. Taylor v. I/linois, No. 86-5963 (Jan.

25, 1988), slip op. 9; United States v. Valenzuela-Bernal, 458 U.S.

858, 867 (1982).

8

MBC powder elsewhere in his checkbook if he had done

so. Petitioner’s experiments, however, would have done

nothing to explain the fact that MBC powder was found in

his checkbook. The defense experiments would only have

suggested that a greater amount of powder could have

been found in the checkbook, although that difference

could be due to the fact that petitioner noticed the blue

coloring and attempted to clean his checkbook. The im-

portant point is that petitioner’s experiments would not

have provided an innocent explanation for the presence of

MBC powder in his checkbook. Accordingly, those experi-

ments were not directly exculpatory.

In any event, the trial court did not abuse its discretion

by ruling that petitioner had failed to show that the out-of-

court experiments were sufficiently similar to the tech-

nique used by the OSI to justify their admission. The

defense expert did not know the amount of MBC the OSI

had used to dust the bills, although he agreed that the

amount of powder used could affect the amount of con-

tamination (Tr. 229, 232). Moreover, because of the dif-

ference between the amount of contamination resulting

from the expert’s experiments and the amount of con-

tamination in the desk drawer where the treated bills had

been placed (Tr. 113, 248), it is evident that the defense ex-

periments overestimated the amount of MBC used by the

OSI to treat the bills. Furthermore, neither the expert’s ex-

periments nor the first experiment conducted by peti-

tioner’s aes eel the effect of packaging the bills

in an envelope, which the defense expert conceded would

reduce contamination. Petitioner also did not expiain how

his father had packaged the bills during his second experi-

ment. Nor did the experiments consider the effect that

folding the package would have on the transfer of MBC,

even though the defense expert conceded that folding

would reduce the transfer of powder. In addition, the ex-

9

periments did not consider the effect of placing a barrier,

such as the identification card used by petitioner, between

the checks and the interior plastic of the checkbook.

Again, the defense expert conceded that the presence of

such a card would reduce the transfer of MBC from the

bills to the interior of the checkbook. Under these cir-

cumstances, the trial court’s decision was not an abuse of

his discretion.

2. Petitioner next claims (Pet. 10-13) that the court of

military review applied the wrong standard of review to

determine whether the evidence was sufficient to support

his conviction. The Court of Military Appeals rejected

that claim (Pet. App. 4a),® and it does not merit review by

this Court.

The standard of review applied by a court of military

review to determine whether the evidence is sufficient to

support the defendant’s conviction is substantially dif-

ferent, and more generous to military defendants, than the

standard employed by civilian appellate courts. A civilian

appellate court does not inquire whether if believes that

the evidence is sufficient to establish the defendant’s guilt

beyond a reasonable doubt, but instead only determines

“whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

* Petitioner’s assertion (Pet. 12) that the Court of Military Appeals

misunderstood the issue is plainly mistaken. The Court of Military

Appeals determined (Pet. App. 3a-4a) that the court of military review

had properly fulfilled its appellate duties by independently reviewing

the evidence, considering the contentions of the parties at trial and on

appeal, and expressing its satisfaction that the evidence was sufficient

to prove petitioner’s guilt beyond a reasonable doubt. In short, ihe

court of military review affirmed petitioner’s conviction because its

own review of the case convinced it that the findings were “correct in

law and fact.” Art. 66(c), UCMJ, 10 U.S.C. 866(c).

‘ i 10

beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original). By contrast, a

court of military review is required independently to

review the record and to be convinced of the correctness of

the findings before they may be affirmed. Art. 66(c),

UCMJ, 10 U.S.C. 866(c).?

This specialized inquiry is peculiar to the military ap-

pellate courts, and the Court of Military Appeals con-

cluded that the Air Force Court of Military Review prop-

erly carried out its responsibilities under Article 66(c) in

this case.'® At bottom, petitioner’s claim amounts to a

* A court of military review is required to “affirm only such find-

ings of guilty * * * as it finds correct in law and fact and determines,

on the basis of the entire record, should be approved.” Art. 66(c),

UCMJ, 10 U.S.C. 866(c). Although nothing in the language of the

statute or its legislative history suggests that the courts of military

review must independently apply the “beyond a reasonable doubt”

standard to the record when reviewing the sufficiency of the evidence

(see Jackson v. Tavlor, 353 U.S. 569, 577 & n.8 (1957)), the military

courts have read that standard into the statute. &.g., United States v.

Palenius, 2 M.J. 86, 91 1.7 (C.M.A. 1977). At the same time, that

standard is tempered by another provision of Article 66(c), which ad-

monishes the courts of military review to “recognizfe] that the trial

court saw and heard the witnesses.” Accordingly, the courts of

military review generally have refused to disturb the trial court’s tind-

ings of guilt merely because the evidence at trial was contlicting. In-

stead, they have deterred to the judgments of the factfinders at trial,

who Were ina beller position to resolve contlicts in the evidence. £.z.,

United States v. Van Steenwvk, 21 M.J. 795, 812 (N.M.LC.M.R. 1985);

United States \. Hudson, 20 M.Jd. 607, 610 (ALELC.M.R. 1985);

United States \. Landes, 17 Mid. 1092 (A.E.C.M.R.), petition denied,

19 M.J. 22 (1984).

' The Court of Military Appeals has not hesitated to reverse a deci-

sion of a court of military review When it appears that the lower court

failed to pertorm its duty under Article 66(¢) to address an unresolved

factual issue. See United States \. Baran, 22 Md. 265, 267 (CLMLA.

1986).

bas.

11

disagreement with the findings of the court-martial panel,

which were sustained by both the court of military review,

under a “beyond a reasonable doubt” standard, and the

Court of Military Appeals, under the traditional standard

of appellate review for the sufficiency of the evidence. '!

Further review of that issue is not warranted.

3. Petitioner contends (Pet. 13-14) that the trial

judge’s instruction on consciousness of guilt shifted the

burden of proof to the defense.

Based on petitioner’s statement denying any knowledge

of the stolen money and petitioner’s statement to Cadet

Weeth in which petitioner sought to explain the presence

of MBC on his hands (Tr. 112, 148, 155), the trial judge

instructed the court-martial members that they could infer

from a false exculpatory statement that petitioner was

aware of his guilt (Tr. 302):

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 con-

fronted 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 accused voluntarily offers an explanation

or makes some statements tending to establish his

'' Petitioner criticizes the court of military review for supposedly

relying on a “hypothesis of guilt” standard (Pet. 11) to affirm his con-

viction. Be petitioner has supplied no other explanation for the

presence of the MBC powder inside his checkbook. li the absence of a

plausible alternative explanation for that proof, the court of military

review was entitled to conclude thai the only reasonable explanation

for the presence of the MBC powder inside petitioner’s checkbook was

that he stole the money. In any event, the “proof beyond a reasonable

doubt” standard does not require an appellate court to rule out every

hypothesis except that of guilt. Jackson v. Virginia, 443 U.S. at 362;

Holland v. United States, 348 U.S. 121, 139-140 (1954).

12

innocence, and such explanation or statement is later

shown to be false, the court may consider whether

this circumstantial evidence points to a consciousness

of guilt. It is reasonable to infer that an innocent per-

son does not ordinarily find it necessary to invent or

fabricate a voluntary explanation or a statement tend-

ing to establish his innocence. Whether or not

evidence as to an accused’s voluntary explanation or

statement points to a consciousness of guilt and the

significance, if any, to the attachment of any such

evidence, are matters for your determination.

The instruction given by the trial judge did not expressly

or implicitly shift the burden of persuasion on any element

of the crime to petitioner. It merely told the trier of fact

that it could consider whether petitioner made false ex-

culpatory statements and, if so, whether they tended to

show that petitioner was guilty. The instruction did not re-

quire the court-martial members to presume any fact or to

draw any inference, and therefore could not have shifted

the burden of proof to petitioner.'?

Petitioner also claims (Pet. 14-15) that the instruction

should not have been given because it lacked an adequate

factual basis. He argues that the evidence was insufficient

to justify giving the instruction because his exculpatory

statements were not shown to be false. That contention

also lacks merit. In light of the substantial evidence at trial

directly contradicting petitioner’s assertions (Tr._82-83, 89,

‘> Petitioner therefore errs in relying (Pet. 13-14) on decisions in

volving statutory presumptions or jury instructions which could

reasonably be viewed as requiring the accused io bear the burden ot

persuasion on an essential element of the crime. E.g., Francis v.

Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510

(1979); Patterson v. New York, 432 U.S. 197 (1977); Mullaney \.

Wilbur, 421 U.S. 684 (1975).

13

148-149, 154, 189), there was sufficient evidence from

which the trier of fact could reasonably conclude that peti-

tioner’s asserted lack of knowledge of the presence of the

money in his roommate’s desk drawer and his explanation

for the presence of MBC powder on his hands were false.

Thus, it was not error to instruct the court-martial

members that they were free to consider petitioner’s

Statements as evidence of his guilt. Wilson v. United

States, 162 U.S. 613, 620-621 (1896) (upholding con-

sciousness of guilt instruction where defendant’s innocent

explanations for his possession of the deceased’s property

and his denials that he had known the deceased were con-

tradicted by evidence at trial); see also, e.g., Government

of Virgin Islands v. Testamark, 570 F.2d 1162, 1168 (3d

Cir. 1978); United States v. Wood, 550 F.2d 435, 442-443

(9th Cir. 1976); United States v. Bear Killer, 534 F.2d

1253, 1260 (8th Cir.), cert. denied, 429 U.S. 846 (1976);

see generally 2 J. Wigmore, Evidence §§ 273, 276 (3d ed.

1940).'3

'3 United States v. Sanchez, 790 F.2d 245 (2d Cir.), cert. denied,

479 U.S. 989 (1986), and United States v. Grandmont, 680 F.2d 867

(Ist Cir. 1982), cited by petitioner (Pet. 14), are not to the contrary.

Both cases involved consciousness of guilt instructions based on the

defendant’s alleged flight. Sanchez ruled that the defendant’s unex-

plained absence from trial was an insufficient predicate for an instruc-

tion on flight as evidence of consciousness of guilt. 790 F.2d at 252.

Grandmont upheld the use of such an instruction because there was

sufficient evidence to justify such an inference. 680 F.2d at 869.

4

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Lt. Col., OJAG, USAF

MARC VAN Nuys

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

JANUARY 1988

US GOVERNMENT PRINTING OFFICE 1988— 202.037/60268

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