Petition for Writ of Certiorari — Garcia v. United States
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ay , Supreme Gourt, U.S,
619 | FILED
987
¥Jn the Supreme Court of the GnjtedsMtatess:o. ue.
CLERK
OCTOBER TERM, 1987
JORGE A. GARCIA
STAFF SERGEANT, UNITED STATES AIR FORCE,
PETITIONER,
¥.
UNITED STATES OF AMERICA, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS
LEO L. SERGI
Colonel, Office of the Judge
Advocate General (OTJAG)
United Siates Air Force
HQ USAF/JAJD
Bldg 5683
Bolling AFB, DC 20332-6128
(202) 767-1562
Counsel of Record
and
CHARLES E. AMBROSE, JR.
Major, USAFR
Office of the Judge
Advocate General
United States Air Force
QUESTIONS PRESENTED
1. WHETHER THE TRIAL COURT ERRED BY PER-
MITTING AN EXPERT WITNESS TO TESTIFY IN
THE PROSECUTION’S CASE-IN-CHIEF THAT PETI-
TIONER FIT A PSYCHOLOGICAL PROFILE COM-
MON TO THAT OF CHILD MOLESTERS, WHERE
SUCH EVIDENCE WAS NOT OFFERED TO REBUT
ANY ISSUE PREVIOUSLY RAISED BY THE
DEFENSE?
2. WHETHER ADMISSIONS OF PERJURY BY THE
ALLEGED VICTIM, DISCOVERED AFTER PETI-
TIONER’S TRIAL, REQUIRE THAT THE FINDINGS
AND SENTENCE BE SET ASIDE AND A NEW TRIAL
ORDERED?
3. WHETHER PETITIONER WAS DENIED THE EF-
FECTIVE ASSISTANCE OF COUNSEL?
(i)
TABLE OF CONTENTS
Page
Eg a re er ee i
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NS ae ee rr re re re il
err nr err rr eee ery l
EEO Ore ny eee oe
es Or NG © os od Ss ok ee a Cee 2
Reasons for Granting the Writ 7
|’ Peer eee rere TC eOrer yee ere 8
Question 2 ........ So Wh ahs Ste ek Oe wee 19
SOE Dg sx cas casdou de anabnns sears 20
NE oe ak kc cs Ae eee 21
TABLE OF AUTHORITIES
Federal Cases
Chambers v. Mississippi, 410 U.S. 284,
. Dr PTE 6 ie kee eweny ce be eeteees 19
Kotteakos v. United States, 328 U.S. 750, 66
S.Ct.- 1239, 90 L.Ed. 1557 (1946) . 6s. ass. 18
Michelson vy. United States, 335 U.S. 469, 69
S.Ct. 213, 93 L.Ed. 168 (1948) ........... 15
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) ...... 7, 20, 21
United States v. Frady, 456 U.S. 152 (1982) .. 19
United States v. Young, 470 U.S. 1, 105 S.Ct.
1056, B41, Tid. 20.1 CPGGS) wo cv ns dicn: 8
Frase v. Henry, 444 F.2d 1228, 1231 (10th
ONT a ees Ys eas eee 10
Frye v. United States, 293 F. 1013 (D.C. Cir.
ee ae kak ae eee 11
United States v. Awkward, 597 F.2d 667, 671
(9th Cir. 1979) cert. denied, 444 U.S. 885,
100 S.Ct. 179, 62 L.Ed.2d 116(1979)...... 11
(ii)
iasebatiel day daar o
SORES SF AEE ONAL IES I PY DOTTIE LIE PML TO Ret
Page
Federal Cases — Continued
United States v. Barnard, 490 F.2d 909,
912-914 (9th Cir. 1974) cert. denied, 416
U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310
ee ok ne ka oe wie 8s 10
United States v. Binder, 789 F.2d 595, 601
EE 10, 18
United States v. Brown, 540 F.2d 1048, 1054
(10th Cir. 1976) cert. denied, 429 U.S. 1100,
97 S.Ct. 1122, 51 L.Ed.2d 549 (1976) ...... 10
United States v. Jensen, 608 F.2d 1349, 1356
I 10
United States v. Marabelles, 724 F.2d 1374,
| 18
United States v. Samara, 643 F.2d 701, 705
(10th Cir. 1981) cert. denied, 454 U.S. 1094,
102 S.Ct. 1122, 70 L.Ed.2d (1981) ........ 10
United States v. Valle-Valdez, 554 F.2d 911,
Es gy 18
United States v. Ward, 169 F.2d 460, 462 (3rd
ee ae beccece 10
United States v. August, 21 M.J. 363 (C.M.A.
en caw ebeseesec 7,8
United States v. Bothwell, 17 M.J. 684, 686
SN nasa cccecscccccvcs 11
United States v. DuBay, 17 U.S. C.M.A. 147,
ee 6
United States v. Fisher, 21 M.J. 327, 328
el cag ss cn bo cess os ae 8
United States v. Garcia, 23 M.J. 405 (C.M.A.
GE 8, App A
United States v. Garcia, 22 M.J. 192 (C.M.A.
i ee ch alae 7
iV
Page
Federal Cases — Continued
United States v. Garcia, 21 M.j. 153 (C.M.A.
DR ro Gas ca ee ee Re ce ee 6
United States v. Garcia, ACM 24238, 5 June
SUM is ova cudausenanuties 45 cheers oes App C
United States v. Garcia, 18 M.J. 716 (1986) .. :P
App B
United States v. Helton, 10 M.J. 820, 824 n.16
eel TS cat 2 Re, | eer 12
United States v. Moore, 15 M.J. 354(C.M.A.
SUS yc lacys cc daa ees us Gas sp aan ae om 11
United States v. Snipes, 18 M.J. 172 (C.M.A.
SP er ry re rere rere 7, 12
United States v. Tomlinson, 20 M.J. 897, 902 -
fen | oe | Pee ere ererer 13
United States v. Wright, 37 C.M.R. 835, n.2
at 840 (A.F.B.R. 1966); affirmed, 17
U.S.C.M.A. 183, 37 C.M.R. 447 (1967) ... 10
State Cases
Duley v. States, 467 A.2d 776 (MD App
RED fa neue onload Chee te eae 16
Sanders v. States, 303 S.E.2d 13 (GA 1983) .. 16
States v. Durfee, 322 M.W.2d 778 (Minn
DD odds eee cdos sO ee eee ee 15
State v. Loebach, 310 N.W.2d 58 (Minn
| Se ee er ie Er on ee 14
State v. Spreigl, 272 Minn. 488, 139 N.W.2d
SN os cee bee eiauan as Ge ueres i5
States v. Taylor, 663 S.W.2d at 241 ......... 13
Constitution and Statutes
United States Const. Amend.6............. 20
28 U.S.C. 1259 (3) (Supp. III, 1985) ......... |
Uniform Code of Military Justice Artice 66,
10 U.S.C. 866 (Supp. III, 1985) .......... 7
Page
Miscellaneous
a Re | ee 19
Manual for Courts-Martial, 1984
Pe OUD 5 oo cn duccusccacces 19
Ok Re 9, 13
as 7, 13, 14
CE 9
Perr 20
eR ee 20
MMII, FOUN nnn kc nu ineavaaeswvace vy)
er )
Fe ae 9, 13
Mil.R.Evid. 801 (d)(1)(A) ............. 20
§Jn the Supreme Court of the Anited States
OCTOBER TERM, 1987
No.
JORGE A. GARCIA
STAFF SERGEANT, UNITED STATES AIR FORCE,
PETITIONER,
Vv.
UNITED STATES OF AMERICA, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS
The petitioner, Jorge A. Garcia, respectfully prays that
a writ of certiorari issue to review the decision of the
United States Court of Military Appeals entered in this
proceeding on August 18, 1987.
OPINIONS BELOW
The opinion of the United States Court of Military Ap-
peals is reported at M.J. ____ (C.M.A. 1986) (Ap-
pendix A). The original decision of the United States Air
Force Court of Military Review is published at 18 M.J.
716 (A.F.C.M.R. 1984) (Appendix B). A subsequent, un-
published slip opinion of the Air Force Court of Review
(upon remand) is appended to this petition (United States”
v. Garcia, ACM 24238, 5 June 1986— Appendix C).
JURISDICTION
The decision of the United States Court of Military Ap-
peals was rendered on August 18, 1987. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1259.
(1)
‘STATEMENT OF THE CASE
The alleged victim, Jennifer Arlen, age 11, at the time of
trial testified that on 18 February 1983, she and her
younger brother, accompanied by their mother, visited the
Dental Clinic at the USAF Regional Hospital, Eglin AFB,
Florida, for routine dental treatment. (R. 40). At approx-
imately 1400 hours, she was taken to a room at the clinic
to have her teeth cleaned by the petitioner, SSgt Garcia.
When she entered the room, Jennifer testified that peti-
tioner gave her a wicked laugh and stared at her. (R. 41
and 53). He then had her lie on a dental couch and ad-
justed it so that her feet were higher than her head. (R.
42.) Petitioner then began cleaning her teeth. At one point
during the cleaning, she heard a zipper being unzipped and
then observed petitioner place a small towel over his lap.
(R. 42.) Jennifer said that petitioner seemed to be nervous,
and that he kept shaking. (R. 43.) Towards the end of the
cleaning session, while her mouth was full of dental equip-
ment, (R. 51), petitioner moved Jennifer’s head towards
his lap. Jennifer pulled away and Garcia moved her head
back. Petitioner then told her to close her eyes tight, but
before she did so, she saw petitioner’s penis close to her
face moving towards her mouth. Petitioner then “drew
back and starting messing in the corner again.” When
finished, Garcia resumed working on her. During the inci-
dent, Jennifer testified, she was scared and unable to
move. (R. 43.) When she was called back as a defense
witness, Jennifer stated she was sure that she saw peti-
tioner’s penis and not his finger. (R. 100.) She knew what a
penis looked like because she had seen her nine year old
brother’s. Petitioner’s penis looked like her brother’s penis
only larger; it was a little lighter than the color of skin. (R.
98.) On cross-examination by the prosecution, Jennifer
added that when she saw petitioner’s penis, his hand was
3
not near it. Rather, the penis she saw was protruding from
petitioner’s fly at the time when his hands were behind her
head. (R. 100.)
As a prosecution witness, Jennifer testified petitioner’s
fingers were not near his pants, and that she was sure he
was not wearing a glove or anything on his finger except a
ring. (R. 52.)
When she was preparing to leave, petitioner standing,
handed her an appointment slip. While she was pretending
to read the appointment slip she saw petitioner’s pants
were unzipped. She stared at the zipper for a few seconds
to make sure that she had not imagined the incident. (R.
43.)
After leaving petitioner’s room, Jennifer went to her
mother. A family friend, another dental technician,
Sergeant Kay R. Kauffman, was standing with Jennifer’s
mother. Sergeant Kauffman testified that at about 1430
hours she saw Jennifer approach looking confused and
befuddled. (R. 56, 57.) Jennifer looked back at petitioner’s
room, then looked at her mother and broke into tears. (R.
57.) Sergeant Kauffman stated she had heard Jennifer
mumble to her mother “he kept forcing my head to the
right —his zipper was down.” (R. 58.)
The prosecution’s next witness was a psychologist, Cap-
tain Bruce E. Ebert, assigned to the USAF Regional
Hospital, Eglin AFB. The court accepted Captain Ebert as
an expert witness, qualified in clinical psychology. (R. 59,
60.) During his qualifying examination, Dr. Ebert testified
that he had “had extensive additional post-graduute train-
ing in the area of sex, sex offenders and rape, and in hyp-
nosis and clinical assessment of sex offenders.” (R. 59.)
Captain Ebert testified, without objection by defense
counsel, that he had given Sergeant Garcia a battery of
psychological tests and had conducted several lengthy
diagnostic interviews. Based upon these tests and inter-
views, Dr. Ebert testified that he was able “to put together
4
a rather valid and reliable composite of an individual’s
personality.” (R. 60-61), and that petitioner fit the
psychological profile of a child molester. (R. 65.)
In discussing the tests which he had given petitioner, Dr.
Ebert testifed that petitioner had lied on eleven of thirteen
test items, that petitioner had poor impulse control, and
that the accused was an individual who was trying to pre-
sent himself in a favorable light or hide something. He
also testified that petitioner had a test score consistent
with the type of personality of a person who would use
repression and denial as defense mechanisms, that is, who
would suppress conscious awareness of unacceptable im-
pulses. (R. 63.)
On cross-examination by the defense, Captain Ebert
testified that, while the tests show a capacity to behave ina
certain way (R. 66), they do not predict behavior. (R. 65.)
He further stated that having the psychological profile of a
sex offender does not mean that one will commit a sex of-
fense. (R. 66.) On one occasion, he had tested a self-
confessed child molester who showed a _ normal
psychological profile. (R. 67.)
On redirect, however, Dr. Ebert testified that, given his
Own investigation into the thought processes of the ac-
cused, he (Ebert) could not rule out that petitioner had
committed the offense charged. (R. 66.)
The defense called several witnesses on behalf of peti-
tioner. The theory of the defense was that Jennifer Arlen
was mistaken as to what she saw.
Consistent with this theory, the defense called Sergeant
Kauffman and the NCOIC of the dental clinic, MSgt
Larry Reid. Both testified that the positioning of Jennifer
on the dental couch, SSgt Garcia’s movement of Jennifer’s
head, his use of a lap towel, and his asking his patient to
close her eyes tight, were all normal occurrences during a
dental cleaning. (R. 75, 76, 92.)
ace a aI a aml! CNIS tt te fi CN ae ON a AO
5
MSgt Reid stated that it was dental clinic policy to keep
the door open when working on a patient. (R. 90.) Sgt
Kauffman and, through a stipulation of expected
testimony, another dental technician, TSgt Jeannette M.
Turnage, testified that they had walked by SSgt Garcia’s
room several times during Jennifer’s appointment, had
seen petitioner working on Jennifer’s teeth, and had not
seen anything unusual. (R. 73, 88.)
SrA Lavawne Dehart, who worked for SSgt Garcia,
testified that at the time petitioner was working on
Jennifer’s teeth, she had gone into his room to deliver
some paperwork. She saw SSgt Garcia working on a
young girl who fit Jennifer’s description, and she too had
not seen anything unusual. (R. 85.)
The co-workers also testifed there was a lot of traffic in
the hallway outside petitioner’s room. However, on cross-
examination, the prosecution brought out that during the
time of Jennifer’s appointment, the traffic was lighter than
it was earlier in the day (R. 93), and that because of the lap
towel and the positioning of the dental couch, people
walking by the room probably could not have seen peti-
tioner’s lap as he was sitting down. (R. 78.)
Staff Sergeant Garcia testified in his own defense. He
denied molesting Jennifer. (R. 108.) He said he did posi-
tion her on the dental couch, moved her head, used a lap
towel and asked her to close her eyes tight as she had
described, but these were all normal procedures he used
when cleaning teeth. (R. 102, 103.)
During Jennifer’s appointment, petitioner said he used a
kot, similar to the one pictured in Defense Exhibits E and
F, to protect his right index finger. (R. 103; Appendix D to
this Petition.) (The inference here being that a finger
covered by a kot because of the color and texture could be
mistaken for a penis). He admitted it was also true his
pants were unzipped (R. 104), but he explained he had
gone to the bathroom just before Jennifer’s appointment,
|
'
6
and had apparently forgotten to zip up his pants. He did
not discover that his pants were unzipped until after he
finished cleaning Jennifer’s teeth when he stood up and
removed the towel from his lap. (R. 110.)
Petitioner was convicted by a court-martial composed
of officers (members), and was sentenced to be
dishonorably discharged from the service, to be reduced to
the grade of airman basic, and to be confined for six years.
The Air Force Court of Military Review affirmed peti-
tioner’s conviction and sentence on July 13, 1984.
Appellate counsel for petitioner then filed with the
Court of Military Appeals a Report of Investigation
prepared by the Air Force Office of Special Investigation
(AFOSI), which contained an affidavit (Appendix E) from
an acquaintenance of the victim, and which indicated that
_ the victim had committed perjury at trial, and had
fabricated her allegations against petitioner. The Court of
Military Appeals then granted review in petitioner’s case
on the following issues:
I. Whether the apellant was denied effective
assistance of counsel.
II. Whether the allegation of improper contacts
with the court members by the mother of the
alleged victim,' and the allegation of perjury by
the alleged victim, require that the findings and
sentence be set aside, or that a hearing pursuant
to the United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967) be ordered.
In addition, the Court of Military — specified the
following issue for review:
Whether the military judge erred by permitting an ex-
pert witness to testify that appellant fit a
psychological profile common to child molesters.
United States v. Garcia, 21 M.J. 153 (C.M.A. 1985)
(Order Granting Petition for Review). Thereafter, on
“3: Aika isi wit eal t Neate Or NTS
' We do not raise this issue for purposes of this petition.
7
April 10, 1986, the Court of Military Appeals issued the
following order in petitioner’s case:
On further consideration of the granted issues (21
M.J. 153) it appears that issue II raised bv appellate
defense counsel has not been considered by the
United States Air Force Court of Military Review. It
further appears that that court should consider the
specified issue in light of United States v. August, 21
M.J. 363 (C.M.A. 1986), and United States v. Snipes,
18 M.J. 172 (C.M.A. 1984), and its impact, if any, on
granted issue I. See Strickland v. Washington, 466
U.S. 668, 104S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ac-
cordingly, it is ordered that the decision of the United
States Air Force Court of Military Review (18 M.J.
716) is set aside; and that the record of trial is re-
turned to the Judge Advocate General of the Air
Force for resubmission to that court for further con-
sideration under Article 66, Uniform Code of
Military Justice, 10 U.S.C. § 866.
United States v. Garcia, 22 M.J. 192 (C.M.A. 1986).
On June 5, 1986, the Air Force Court of Review again
affirmed petitioner’s conviction, holding that the “hearsay
nature” of the perjury allegations against Jennifer Arlen
compelled the conclusion that the second issue granted for
review by the Court of Military Appeals was essentially
unsupported by any evidence (Appendix 3, slip opinion at
4). The Court of Review concluded that admission of the
expert testimony as to petitioner’s psychological profile
had been erroneous, and that “the only purpose of the
testimony was to provide evidence that appellant was more
likely than not to have sexually abused the victim,” in con-
travention of Military Rule of Evidence 404(a).2 The
Court then proceeded to hold, however, that:
2 Mil. R. Evid. 404(a) is virtually identical to Federal Rule of
Evidence 404(a).
8
.. . Because there was no objection interposed by
trial defense counsel to any of the testimony in ques-
tion no error may be predicted upon the ruling by the
military judge admitting the evidence.
Ibid, slip opinion at 5. The Court of Review then
reiterated its earlier holding that trial defense counsel’s
failure to object to the expert’s testimony did not deny
petitioner the effective assistance of counsel. /d., slip
opinion at 6.
On January 28, 1987, the Court of Military Appeals
issued a second grant of review in petitioner’s case upon
the issue of the admission of the testimony as to
petitioner’s psychological profile. United States v. Garcia,
23 M.J. 405 (C.M.A. 1987). Thereafter, on August 18,
1987, the Court of Military Appeals issued the following
order:
On further consideration of the granted issue (23
M.J. 405), we hold that admission of testimony that
appellant’s psychological profile was consistent with
that of persons who sexually abuse children was er-
ror. See United States v. August, 21 M.J. 363, 365
(C.M.A. 1986). However, appellant did not object to
that action, and we find that action was not plain er-
ror. United States v. Young, 470 U.S. 1, 105 S.Ct.
1038, 84 L.Ed.2d 1 (1985); United States v. Fisher, 21
M.J. 327, 328 (C.M.A. 1986). Accordingly, it is by
the Court, this 18th day of August, 1987,
ORDERED:
That the decision of the United States Air Force
Court of Military of Review is affirmed.
REASONS FOR GRANTING THE WRIT
QUESTION ONE
As noted above, during the prosecution’s case-in-chief,
Captain Ebert, an Air Force clinical psychologist, ac-
cepted as an expert witness, testified without objection by
9
defense counsel that the petitioner had the psychological
profile of a child molester, that this profile was consistent
with an individual who in his experience had molested
children, and that Garcia was therefore capable of com-
mitting the alleged offenses. (R. 65.) This was coupled
with Ebert’s testimony that Garcia had poor impulse con-
trol, and that, in his opinion, Garcia had lied about 11 out
of a possible 13 test items Ebert had given him. (R.63.)
Presumably, this testimony was offered under Military
Rules of Evidence 701, 702, and 704, which allow expert
witnesses to express opinion or to draw inferences, if such
testimony is otherwise admissible, even if the testimony
embraces an ultimate issue to be decided by the trier of
fact. Mil. R. Evid. 704. The purpose of the abrogation of
the common-law “ultimate issue” rule by the drafters of
Rule 704, however, was not to grant carte blanche to pros-
ecutors in the elicitation of expert witness testimony upon
all issues.
Military Rule of Evidence 704 was taken verbatim from
Federal Rule of Evidence 704. The drafters of the federal
rule were careful to specify that:
The abolition of the ultimate issue rule does not lower
the bars so as to admit all opinions. Under Rules 701
and 702, opinions must be helpful to the trier of fact,
and Rule 403 provides for exclusion of evidence
which wastes time. These provisions afford ample
assurance against the admission of opinions which
would merely tell the jury what result to reach .. .
Federal Rule of Evidence 704, Advisory Committee’s
Note, 51 F.R.D. 405 (1971) (emphasis added).
Similarly, the analysis to Military Rule of Evidence 704
provides that the rule “does not permit the witness to
testify as to his or her opinion as to the guilt or innocence
of the accused, or to state legal opinions.” M.C.M., 1984,
Appendix 22 at A22-41.
10
These qualifications on the rule merely reflect a long-
standing body of case-law, in effect before the enactment
of the Federal Rules of Evidence,? but with continued
vitality since those rules went into effect. The main thrust
of these decisions is that expert testimony should not be
permitted if it invades the province of the jury in
evaluating the credibility of evidence, whether the effect of
such opinions is to bolster or discount other testimony or
evidence. United States v. Binder, 789 F.2d 595, 602 (9th
cir. 1985).4
This improper result was accomplished both directly by
Dr. Ebert’s statements that petitioner had lied on his tests,
was acting defensively and was using denial mechanisms
(R. 63), and by inference, when Dr. Ebert testified that
petitioner fit the profile of a child molester (this indirectly
inferred that petitioner was lying when he denied having
committed the offenses charged, it also directly inferred
that petitioner -was the child abuser, and therefore, was
guilty as charged). The military judge erred in permitting
this testimony to go before the members of the court.°
3 See, e.g., United States v. Ward, 169 F.2d 460, 462 (3rd Cir. 1948)
(an expert may not usurp the exclusive function of the jury in weighing
evidence and determining credibility); United States v. Wright, 37
C.M.R. 835, n.2 at 840 (A.F.B.R. 1966); affirmed, 17 U.S.C.M.A.
183, 37 C.M.R. 447 (1967).
4 Accord: Frase v. Henry, 444 F.2d 1228, 1231 (10th Cir. 1971);
United States v. Jensen, 608 F.2d 1349, 1356 (10th Cir. 1979); United
States v. Samara, 643 F.2d 701, 705 (10th Cir. 1981), cert. denied, 454
U.S. 1094, 102 S.Ct. 1122, 70 L.Ed.2d (1981); United States vy.
Brown, 540 F.2d 1048, 1054 (10th Cir. 1976), cert. denied, 429 U.S.
1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1976); Wigmore on Evidence,
Third Ed., Vol. VII, § 1920, 1921; 31 Am. Jr. 2d, Expert and Opinion
Evidence, § 22.
5 See e.g., United States v. Barnard, 490 F.2d 907, 912-914 (9th Cir.
1974) cert. denied, 416 U.S. 959, 94S.Ct. 1976, 40 L.Ed.2d 310 (1974)
(trial court properly refused to allow defense to elicit psychiatric
11
The presumption that members of a jury (or members
of the court in a court-martial) are best equipped to deter-
mine the ultimate issues of credibility and guilt, without
assistance from so-called “experts” in these fields, is based
at least in part on the proper reluctance of courts of law to
blindly accept the notion that any field of expertise is more
capable than a jury in deciding contested issues of fact. In
short, lie detectors, either human or mechanical, have not
yet been “generally accepted” in the scientific community
to the extent that they meet the standard announced in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since
the relevance of expert testimony is, in part, a function of
the underlying scientific principles upon which that exper-
tise rests, if an expert is not truly an expert, his opinion has
no legally recognized probative value. United States v.
Bothwell, 17 M.J. 684, 686 (A.C.M.R. 1983); see also;
United States v. Moore, 15 M.J. 354 (C.M.A. 1983) at
367-376 (Everett, C.J., dissenting).
In addition to the doubtful validity from a scientific
standpoint of lie detector evidence, the inherent prejudice
and legal dangers of such evidence have led courts to reject
it:
In determining the ultimate issue of guilt or in-
nocence, it is the function of the fact-finder to hear
and assess the witnesses; to weigh that testimony
against all other evidence in the case; and to assess its
truthfulness in light of human experience and
knowledge of the ways of the world . . . presented
with conflicting and unreconcilable evidence, the
temptation would be great for the courts to defer to
testimony as to the credibility of prosecution witness); accord: United
States v. Awkward, 597 F.2d 667, 671 (9th Cir. 1979), cert. denied,
444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979).
12
the opinion of the polygraph examiners, and abrogate
its factfinding responsibility.
United States v. Helton, 10 M.J. 820, 824 n.16 at 824
(A.F.C.M.R. 1981). This sentiment was echoed by Chief
Judge Everett of the Court of Military Appeals in his con-
curring opinion in United States v. Snipes, 18 M.J. 172,
180 (C.M.A. 1984):
In evaluating someone’s credibility, “scientific,
technical or otherwise specialized knowledge” is of
limited assistance to the triers of fact [citation
omitted]. Indeed, hearing a purported expert give his
opinion about the credibility of a witness may hinder
the factfinder by distracting him from using his own
experience and common sense, which provide the best
means for him to determine the truthfulness of
testimony he had heard. Moreover, an anomaly will
exist if we continue to exclude the opinions of
polygraph operators—who are specially trained and
equipped to detect deception — but receive in evidence
the opinions of various other “experts” about whether
a victim or other witness has been telling the truth.
Similarly, in rejecting expert evidence as to rape trauma
syndrome in a closely-contested case, the Army Court of
Military Review has held:
Both the government and the accused are entitled to
have issues of fact and credibility decided by court
members. To allow an “expert” to offer his opinion
on the resolution of a credibility dispute goes too far,
and it makes no difference whether the opinion is ex-
pressed or follows inferentially from the expert’s
diagnosis of a psychological condition suffered by the
witness whose credibility is at issue. The court
members must decide whether a witness is telling the
truth. Expert insights into human nature are permissi-
ble, but lie detector evidence—whether human or
13
mechanical —is not. Otherwise, trial could degenerate
into a battle of experts expressing opinions on the
veracity of various witnesses. See States v. Taylor,
663 S.W.2d at 241.
United States V. Tomlinson, 20 M.J. 897, 902 (A.C.M.R.
1985) (emphasis added). In short, to the extent that such
evidence has any probative value, it is nevertheless
outweighed by the dangers of prejudice to the fact-finding
duties of the court, and to an accused. Mil. R. Evid. 403.
The military judge’s lack of sua sponte action to exclude
such evidence was erroneous, for yet another reason, in
that such testimony was not “otherwise admissible”
(M.R.E. 704) because it violated the provisions of Military
Rule of Evidence 404(a). That rule provides in pertinent
part:
(a) Character evidence generally. Evidence of a per-
son’s character or a trait of a person’s character is not
admissible for the purpose of proving that the person
acted in conformity therewith on a particular occa-
sion except:
(1) Character of the accused. Evidence of a perti-
nent trait of the character of the accused offered by
an accused, or by the prosecution to rebut the same.
The testimony of Dr. Ebert was offered by the prosecu-
tion during its case-in-chief, not in rebuttal to evidence
presented by the defense. It is therefore readily apparent
that the character of the accused, either for truthfulness or
as a child molester in general, was not in issue at the time
Dr. Ebert took the stand. The error in allowing this
testimony was recognized by the staff judge advocate to
the convening authority below, who advised the convening
authority:
“Under MRE 404, evidence of an accused [sic]
character trait (child molester) offered to prove that
accused acted in conformity therewith (molested a.
14
child) is inadmissible unless offered by the defense or
by the prosecution to rebut such defense evidence. . .
the testimony of a psychologist was offered by the
prosecution on direct, [case-in-chief] not in rebuttal
. . SO, it is clear that the admission of the evidence
was error.”
SJA’s Recommendation, paragraph 49 at page 16.
In State v. Loebach, 310 N.W.2d 58 (Minn. 1981),
Loebach was convicted of third-degree murder of his
three-month-old son. The state called an expert on child
abuse during their case-in-chief to testify on the “battered
child syndrome.” He concluded Loebach’s case fit this
model almost perfectly. Over defense objection, the expert
was permitted to testify that battering parents tend to have
similar personality traits and personal histories. The state
also called over defense objection two witnesses from
Leobach’s past in an attempt to prove he fit the pattern of
a “battering parent.” Loebach took the stand and denied
abusing his son. He did not put his character in evidence.
The Minnesota Supreme Court in construing Minnesota
Rule of Evidence 404(a), which is identical to M.R.E.
404(a), found that the evidence presented by the expert on
the “battering parent profile” and the testimony of the two
witnesses from the appellant’s past, should not have been
admitted by the trial judge. The court found there were
three basic reasons for the exclusion of character evidence
to prove that a criminal defendant had acted in conformity
with such character:
First, there is the possibility that the jury will convict
a defendant in order to penalize him for his past
misdeeds or simply because he is an undesirable per-
son. Second, there is the danger that a jury will over-
value the character evidence in assessing the guilt for
the crime charged. Finally, it is unfair to require an
accused to be prepared not only to defend against im-
mediate charges, but also disprove or explain his per-
15
sonality or prior actions. State v. Spreigl, 272 Minn.
488, 139 N.W.2d 167 (1965); 2 Louisell & Mueller,
Federal Evidence §§ 1136 (1978); I.J. Wigmore,
Evidence §§ 193-94 (3d. 1940). Justice Jackson, in
Michelson v. United States, 335 U.S. 469, 69 S.Ct.
213, 93 L.Ed. 168 (1948), recognized the nature and
extent of the potential evidence. In a widely cited
opinion he stated the reasons for exclusion of
character evidence as follows:
Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the
prosecution to any kind of evidence of a defendant’s
evil character to establish a probability of his guilt.
Not that the law invests the defendant with a
presumption of good character, ... but it simply
closes the whole matter of character, disposition and
reputation on the prosecution’s case-in-chief. The
State may not show defendant’s prior trouble with the
law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be
persuasive that he is by propensity a probable
perpetrator of the crime. The inquiry is not rejected
because character is irrelevant: on the contrary, it is
said to weigh too much with the jury and to so over
persuade them as to prejudge one with a bad general
-record and deny him a fair opportunity to defend
against a particular charge. The overriding policy of
excluding such evidence, despite its admitted pro-
bative value, is the practical experience and its
disallowance tends to prevent confusion of issues, un-
fair surprise and undue prejudice. /d. at 475-76, 69
S.Ct. at 218-19 (citation and footnotes omitted.)
Loebach, supra, at 63 and 64. -
The rationale of the Minnesota Supreme Court has been
followed in a series of other cases dealing with the same
kind of expert testimony. See: States v. Durfee, 322
16
M.W.2d 778 (Minn. 1982); Sanders v. State, 303 S.E.2d 13
(Ga. 1983); Duley v. States, 467 A.2d 776 (Md. App.
1983).
Although none of these convictions were reversed, in all
of them the evidence of the appellant’s guilt was over-
whelming. Unlike the cited cases, the evidence presented in
the instant case was hotly contested and was anything but
overwhelming for the prosecution. The only witnesses to
the alleged incident were Sergeant Garcia and the alleged
victim. The prosecution’s theory was that the discrepancy
was the result of a deliberate lie on the part of Garcia. The
defense’s position was the discrepancy was the result of an
innocent mistake by Jennifer Arlen.
Both witnesses were supported by extrinsic evidence.
For the prosecution, this evidence included Jennifer
Arlen’s emotional, spontaneous reaction, witnessed by her
mother and a dental technician, after she left Garcia’s den-
tal examination room; Garcia’s admission that his zipper
was down during the time he worked on Jennifer’s teeth;
and Garcia’s failure to offer a satisfactory explanation
when confronted by Jennifer’s mother.
For the defense, the supporting extrinsic evidence was
that much of what Jennifer testified to (positioning of the
dental chair, moving the patient’s head towards the techni-
cian’s lap, telling a patient to close her eyes, and the use of
a lap towel), is normal procedure for a dental cleaning. In
addition, Sergeant Kauffman testified that Garcia ap-
peared “taken aback” and confused when confronted by
Jennifer’s mother. This would explain his failure to pro-
vide an explanation to Jennifer’s mother when confronted
by her.
There was also testimony by two lab technicians who
walked by Garcia’s room on several occasions; One went
into the room on one occasion, and neither saw anything
17
unusual. This supports petitioner’s version of what hap-
pened. In order for Garcia to have accomplished this of-
fense, he would have had to assume a semi-standing or
squatting position. In sucha position, he would have been
fully exposing himself towards the open door of the ex-
amination room. Therefore, given the heavy hall traffic,
the open door, and the possibility that co-workers would
either look in or enter during a cleaning, it certainly seems
unlikely that Garcia would have taken the risk of exposing
himself to Jennifer.
With the evidence in this posture it becomes readily ap-
parent that the crucial evidence in this case was that
presented by Captain Ebert. The prosecutor at one point
in his argument even classified Ebert’s testimony as
“critical”:
Remember what he said about the accused in his test
results? The accused has very poor impulse control.
Lewd and lascivious acts on little girls, we submit, are
not crimes that are carefully calculated out, planned
by the child molester who comes up with the design to
prey on a particular time. These offenses are impulse
type offenses. There is nothing wrong with the ac-
cused’s mental condition, except that he can’t control
his impulses and it is that —the fact that he gives into
his impulses—makes him consistent with a person
who would do this even though the normal person
would not perhaps take a risk that someone would see
what he is doing. Doctor Ebert’s testimony, we sub-
mit, is very helpful in evaluating the accused and the
conditions that occurred in the Dental Clinic at that
time. You should consider that .. . Let’s talk for a
moment about Doctor Ebert’s testimony. His—he
told you a great deal about the mental traits —per-
sonality traits of the accused. His testimony is critical
18
because he gave you a preview of exactly how the ac-
cused was going to perform on the stand. He knew ex-
actly what the accused would be doing in this case
with respect to his testimony. The accused is
manipulative. The accused wants to present himself in
the best light possible. Indeed he’s certainly trying to
fix the tests that he took. He tried to answer the ques-
tions—fabricate answers to the questions on the
testing —tests that were given to him. We submit to
you that the testimony of Doctor Ebert gave you a
preview of the mental makeup of the accused. And
the reasons he’s got to testify and testify falsely.
Evaluate his testimony with regard to what Doctor
Ebert said.
(R. 129, 155, emphasis added.)
Although cross-examination attempted to minimize the
damaging effects of Captain Ebert’s testimony, the at-
tempt was largely unsuccessful. The impact of direct ex-
amination was great and was emphasized in argument by
the prosecution. The court members were told by an ex-
pert witness with extensive credentials, that Sergeant Gar-
cia was a liar who could not control his impulses and,
therefore, molested children.
A trial court’s decision as to the admissibility of expert
testimony is reversible only where there is manifest error
or abuse of discretion. United States v. Binder, 769 F.2d
595, 601 (9th Cir. 1985); United States v. Marabelles, 724
F.2d 1374, 1381 (9th Cir. 1984). Erroneous admissions of
such testimony are reversible, however, if the evidence
“more probably than not materially affected the verdict.”
Binder, supra, at 601-602; Uniied States v. Valle-Valdez,
554 F.2d 911, 916 (9th Cir. 1977). Where there remains
grave doubt as to the effect of the error upon the verdict,
the conviction cannot stand. Kotteakos v. United States,
328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The
Court of Military Appeals’ findings below that appellant
seieneiarenaiaitiietaiaiiaiaiiiaaeaiiaiimmiiae
19
was not prejudiced by these errors is untenable and unsup-
ported by the evidence at trial.
As made clear by Military Rule of Evidence 103(d), the
absence of an objection does not render moot the review
of an error which materially prejudices the substantial
rights of the accused. The admission of testimony which
was tantamount to a directed finding of guilt based upon
the diagnosis of the accused as a guilty, deceptive child
molester, proffered by a purported expert in the field,
easily fits the definition of plain error as contemplated by
the Rule.!
QUESTION TWO -
Petitioner is entitled to a new trial in which he could
confront his alleged victim with her admissions of perjury
to Pamela Seiler. The summary dismissal of this issue by
the Air Force Court of Review, affirmed without com-
ment by the Court of Military Appeals, has perpetuated
the denial to petitioner of a fair trial. It is insufficient sup-
port for these decisions to merely cast aside the matter as
one of weightless hearsay, as such a ruling, had it been
employed at trial would have, in effect, denied petitioner
“the right to a fair opportunity to defend against the
{[Government’s] accusations”, since “the rights to confront
and cross-examine witnesses” are “essential to due
process.” Chambers v. Mississippi, 410 U.S. 284, 294-295
(1972). Petitioner would have been entitled, had he known
of Arlen’s admissions at the time of trial, to confront her
' Contrary to the holding of the Air Force Court of Review that “no
error may be predicated” in the absence of an objection, it is well-
established that even absent objection, those errors which seriously at-
fect the fairness of a trial may mandate reversal under the plain error
standard of review. United States v. Young, 470 U.S. 1 (1985); United
States v. Frady, 456 U.S. 152 (1982). See also; Fed. R. Crim. P. 52(b).
20
with these prior inconsistent statements, and even to pro-
duce extrinsic proof of these admissions. Military Rules of
Evidence 608, 613. The egregious nature of the Air Force
Court’s dismissal of this issue upon grounds of hearsay is
illustrated by the fact that, under substantive military and
federal evidentiary law, prior inconsistent statements of a
witness are not hearsay. Mil. R. Evid. 801(d)(1)(A); Fed.
R. Evid. 801(d)(1)(A).
QUESTION THREE
In Strickland v. Washington, 104 S.Ct. 2052 (1984), this
Honorable Court set forth the standards which must be
met before an appellant can prevail on a claim of counsel
ineffectiveness:
First, the defendant must show that counsel’s per-
formance was deficient . . . that counsel made errors
sO serious that [she] was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. . .
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it
cannot be said that the conviction. . . resulted froma
breakdown in the adversary process that renders the
result unreliable.
Ibid,. 104 S.Ct. at 2064.
Petitioner has satisfied both of these requirements.
There can be little doubt that trial defense counsel’s failure
to object to the testimony of Dr. Ebert —testimony which
amounted to an expert’s finding of guilt arrived at through
psychological diagnosis—was error, and the product of
that counsel’s rank inexperience. Trial defense counsel
even admitted such was the case in her post-trial affidavit
filed with the lower courts (Appendix F).
‘ieee seen
21
There can also be no genuine dispute as to the preju-
dicial impact of this error upon petitioner’s trial. The lay
members (jurors) of petitioner’s court-martial were told by
an expert witness with extensive credentials that petitioner
was a liar who could not control his impulses and molested
children. This “evidence”, in an otherwise close and hotly-
contested trial, was characterized as critical by the prose-
cutor in argument. The erroneous admission, without ob-
jection, of this testimony “had a pervasive effect on the in-
ferences to be drawn from the evidence, altering the entire
evidentiary picture.” Strickland v. Washington, supra, 104
S.Ct at 2069. Having had his trial fatally infected by this
diagnosis of guilt, petitioner received a conviction that re-
mains unreliable, especially when considered alongside his
>.99
“victim’s” admissions of perjury.
CONCLUSION
Petitioner submits that his petition for a writ of cer-
tiorari should be granted.
Respectfully Submitted.
LEO L. SERGI
Colonel, Office of the Judge
Advocate General (OTJAG)
United States Air Force
HQ USAF/JAJD
Bldg 5683
Bolling AFB, DC 20332-6128
(202) 767-1562
Counsel of Record
and
CHARLES E. AMBROSE, JR.
Major, USAFR -
Office of the Judge
Advocate General
United States Air Force
APPENDIX A
UNITED STATES COURT OF MILITARY APPEALS
USCMA Dkt. No. 50869/AF
CMR Dkt. No. 24238
UNITED STATES, APPELLEE
v.
JORGE A. GARCIA, (463-02-9196), APPELLANT
ORDER
On further consideration of the granted issue (23 M.J.
405), we hold that testimony that appellant’s psychological
profile was consistent with that of persons who sexually
abuse children was error. See United States v. August, 21
M.J. 363, 365 (C.M.A. 1986). However, appellant did not
object to that evidence nor do we find the admission of
this testimony was plain error. United States v. Young,
470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United
States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986). Accord-
ingly, it is, by the Court, this 18th day of August, 1987,
ORDERED: .
That the decision of the United States Air Force Court
of Military Review is affirmed.
For the Court,
/s/ JOHN A. CurTTs, Ill
Deputy Clerk of the Court
cc: The Judge Advocate General of the Air Force
Appellate Defense Counsel (AMBROSE)
Appellate Government Counsel (GIOVAGNONI])
(la)
2a
APPENDIX B
UNITED STATES AIR FORCE COURT OF
MILITARY REVIEW
ACM 24238.
UNITED STATES
V.
STAFF SERGEANT JORGE A. GARCIA,
FR 463-02-9196, UNITED STATES AIR FORCE.
Decided 13 July, 1984.
Accused, a staff sergeant in the United States Air Force,
was convicted by general court-martial, Barton L.
Spillman, J., of committing lewd and lascivious acts with
another, and he appealed. The United States Air Force
Court of Military Review, Foray, Senior Judge, held that:
(1) accused was not denied effective assistance of counsel,
and (2) specifications of two offenses of committing lewd
and lascivious acts, alleged to have occurred at the same
time and place and with the same victim, were
multiplicious for findings purposes.
Affirmed.
1. Military Justice No. 1242 -
Accused is entitled to reasonably competent counsel
who exercises that competence throughout trial in
accused’s behalf. UCMJ, Art. 27(a, b), 10 U.S.C.A.
§ 827(a, b).
lates
3a -
2. Military Justice No. 1242
In determining whether accused was denied effective
assistance of counsel, task of Court of Military Review is
to determine whether counsel’s assistance was so defective
that it deprived accused of fair trial, trial whose result is
reliable. UCMJ, Art. 27(a, b), 10 U.S.C.A. § 827(a, b).
3. Military Justice No. 1242
Accused’s trial counsel was not ineffective in failing to
object to testimony of clinical psychologist during findings
portion of trial where any damaging aspects of his
testimony given under direct examination had been effec-
tively neutralized by testimony elicited from him upon
cross-examination and where court members determined
guilt by resolving conflicting evidence between victim and
accused without resort to psychologist’s testimony.
4. Military Justice No. 1242
Accused’s trial counsel was not ineffective in failing to
object to cross-examination of accused when questioning
allegedly improperly brought before the court evidence of
accused’s right to remain silent where aim of the cross-
examination was directed toward showing that accused’s
story was of recent fabrication.
5. Military Justice No. 1242
Accused was not denied effective assistance of counsel
by counsel’s failure to object to psychologist’s testimony
during sentencing regarding recidivism rate where the
testimony and prosecution’s comments thereon during
sentencing argument tended toward influencing court
members to adjudge sentence that would act as deterrent
with respect to future similar conduct.
4a
6. Military Justice No. 959
- Two charges of committing lewd and lascivious act
upon another alleged to have occurred at same time and
place and with same victim were multiplicious for findings
purposes.
—
Appellate Counsel for the Accused: Colonel Leo L.
Sergi and Captain Bruce T. Brown.
Appellate Counsel for the United States: Colonel Ken-
neth R. Rengert and Major Robert E. Ferencik, Jr.
Before FORAY, SNYDER and O’HAIR, Appellate
Military Judges.
DECISION
FORAY, Senior Judge:
Appellant was convicted by a general court-martial of
two offenses of committing lewd and lascivious acts with
the same female who was under the age of 16 years. The
approved sentence extends to dishonorable discharge, con-
finement at hard labor for six years, and reduction to the
grade of airman basic.
Appellant makes claim that two errors were committed
during his trial which require remedial action by the
Court.
The first of the two claims we shall review is:
THE APPELLANT WAS DENIED THE EFFEC-
TIVE ASSISTANCE OF COUNSEL.
This assignment of error has multiple aspects which will
be discussed seriatim.
Sa
A
THE TESTIMONY BY CAPTAIN EBERT DUR-
ING FINDINGS, VIOLATED MILITARY RULE
OF EVIDENCE 404(a) AND ITS ADMISSION WAS
PLAIN ERROR.
Captain Ebert, a clinical psychologist, was called and
established as an expert witness by the prosecution. He
testified that a battery of psychological tests was ad-
ministered to the accused and that several lengthy inter-
views were conducted with him. Captain Ebert opined
that, as a result, the accused fit the psychological profile
of a “child molester” and was capable of committing the
offenses charged. He further opined that one of the validi-
ty scales include within the pyschological tests performed
was very much elevated indicating the accused had a
tendency to “present himself in a way that is far beyond
what would be expected of him even though that is con-
trary to his basic nature.” Captain Ebert testified without
objection from trial defense counsel.
During cross-examination by trial defense counsel,
however, Captain Ebert allowed that the tests conducted
on the accused merely indicated a capacity to act in a cer-
tain way and did not predict his behavior. He stated that a
person having a profile of a “sex offender” does not mean
that the person will commit a sex offense. He further
testified that he had once tested a self-confessed child
molester who showed a “normal psychological profile.”
THE TRIAL COUNSEL VIOLATED M.R.E.
301(f)(3) DURING CROSS-EXAMINATION OF
APPELLANT. |
The victim of the offenses had testified that before the
accused committed the acts alleged she heard the accused’s
6a
pants unzip and then saw him place a towel on his lap. '
She later saw the fly of the accused’s trousers to be, in fact,
unzipped. The accused, testifyimg in his own behalf,
denied unzipping his trousers in the victim’s presence as
stated by her, but admitted that his fly was, indeed, un-
zipped. He stated he first noticed that condition after the
victim had departed his presence at which time he
remedied the situation.
On cross-examination of the accused the trial counsel
sought to show that the accused’s explanation as to the in-
nocent and inadvertent “open zipper” was of recent
fabrication. Trial counsel elicited testimony from the ac-
cused that when confronted with an allegation against him
by the victim’s mother on the day in question he never of-
fered his explanation as to why his fly had been unzipped.
Also elicited from the accused was the testimony now
claimed to be violative of M.R.E. 301(f)(3). That was
testimony of the accused that he never offered any ex-
culpatory version regarding his “open zipper” to his com-
mander or certain superior noncommissioned officers
either. No objection to this line of questioning by trial
counsel was offered by defense counsel.
C
CAPTAIN EBERT’S PRESENTENCING TES-
TIMONY WAS INADMISSIBLE.
Without objection by defense counsel, trial counsel
asked Captain Ebert his opinion regarding the general
recidivism rate for persons who commit sexual offenses on
children. He answered:
Yes. It’s great. It’s better than 80 percent without in-
carceration. It’s slightly a little bit less with incarcera-
! At the time pertinent hereto the victim was undergoing a dental
prophylaxis performed by the accused, a dental technician, in an ex-
amination room of the base dental clinic.
7a
tion without a treatment program. In actual prisons
where there are somewhat non-formalized treatment
programs, it’s slightly less than that and for extensive
programs, of which there are only a few in the coun-
try, it can be very, very low. Essentially what I am
Saying is that without treatment expect recidivism.
D
TRIAL COUNSEL’S SENTENCING ARGUMENT
WAS IMPROPER.
The complained of argument was not met with objec-
tion at trial. It emphasized Captain Ebert’s testimony cited
above regarding recidivism and treatment. Trial counsel
asked the court members to consider the fact that if the ac-
cused is confined for seven years no child would be
molested by him for that period. He also asked the court
members to consider “a 75 percent chance that he’s going
to get out of there very shortly and commit another
criminal offense just like this.” He further argued that a
brief period of confinement would result in subjecting
another young girl to suffer through the indignities and
humiliation the victim-in this case endured if a substantial
perior of confinement was not adjudged.
Appellate defense counsel have submitted a Motion for
Leave To File Affidavit of Trial Defense Counsel, which
we grant. The affiant? unabashedly acknowledges failing
to object to those matters which constitute the gravamen
of this appeal. The reasons advanced for the failure to ob-
ject were counsel’s inexperience and the uncomfortable
feeling caused by it. Appellate defense counsel contend
trial defense counsel’s ineffectiveness during the findings
portion of the trial requires reversal of the
? The convening order shows trial defense counsel was certified in
accordance with U.C.M.J., Article 27(b) and designated by The Judge
Advocate General for detail as an Area Defense Counsel, Head-
quarters, United States Air Force Judiciary.
8a
findings and sentence in the case. Counsel’s ineffectiveness
during the sentencing portion of the trial, they say, would
require a rehearing on the sentence in the case.
[1] The Court of Military Appeals has construed an
accused’s right to be represented by counsel, as provided
for under Article 27(a), U.C.M.J., to mean the right to be
represented by an effective counsel. Also, the accused is
entitled to a reasonably competent counsel who exercises
that competence throughout the trial in the accused’s
behalf. United States v. Jefferson, 13 M.J. 1
(C.M.A.1982); United States v. Rivas, 3 M.J. 282
(C.M.A.1977); United States v. Walker, 21 U.S.C.M.A.
376, 45 C.M.R. 150 (1972). That Court has said, though,
the device for measuring the existence or absence of the re-
quired degree of counsel’s competence in a criminal! trial
has been ambiguously stated. It is clear, however, that
[m]Jere mistakes and errors in judgment of counsel are
insufficient to establish a violation of the defendant’s
constitutional [or statutory] right to effective assist-
ance of counsel. It is only where the mistakes or er-
rors amount to inadequate or ineffective assistance of
counsel that it can be said that the appellant has been
denied his constitutional [or statutory] right of
assistance of reasonable competent counsel and one
rendering reasonably effective assistance.
United States v. Rivas supra; United States v. Hancock; 49
C.M.R. 830 (A.C.M.R.1975).
Recently the United States Supreme Court decided a
case which required it to consider the proper standards for
judging an assertion by a ciminal defendant that the Con-
stitution requires a conviction or death sentence to be set
aside because the ineffective assistance of counsel at the
trial or sentencing. Strickland v. Washington, U.S.
, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To require a
reversal of a conviction, or death sentence, they said, the
a
9a
defendant must show that counsel’s assistance was defec-
tive in two essentials. These are:
First, the defendant must show that counsel’s per-
formance was deficient. This requires showing that
counsel made errors so serious that counsel was not
~ functioning as the “counsel” guaranteed the defend-
ant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s er-
rors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the
result unreliable.
When a conviction is thus challenged, the question is
whether there is a reasonable probability that, without the
errors, the factfinder would have had a reasonable doubt
as to guilt. When the sentence is so challenged, the ques-
tion is whether there is a reasonable probability that,
without the errors, the sentencer would have concluded
the sentence should have been less severe. To make this
determination, the court deciding a claim of ineffec-
tiveness of counsel must consider the totality of the
evidence before the factfinder or sentencer. In this regard
the Court in Strickland said:
Some of the factual findings will have been unaf-
fected by the errors, and factual findings that were af-
fected will have been affected in different ways. Some
errors will have had a pervasive effect on the in-
ferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an
isolate, trivial effect. Moreover, a verdict or conclu-
sion only weakly supported by the record is more like-
ly to have been affected by errors than one with over-
10a
whelming record support. Taking the unaffected
findings as a given, and taking due account of the ef-
fect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defend-
ant has met the burden of showing that the decision
reached would reasonably likely have been different
absent the errors.
[2] Our task now will be to determine whether trial
defense counsel’s assistance was so defective that it de-
prived the accused of a fair trial, a trial whose result is
reliable. Since the alleged ineffective assistance of counsel
occurred during both the findings and sentencing portions
of the trial we will separately evaluate counsel’s perform-
ance as to each part. To accomplish our task we will
assume, without deciding that counsel did commit error by
not objecting to those matters pointed out in this appeal.
[3] We do not find that Captain Ebert’s testimony
during the findings portion of the trial had any substantial
impact upon the outcome of that portion. Any damaging
aspects of his testimony given on direct examination had
been effectively neutralized by the testimony elicited from
him upon cross-examination by trial defense counsel. In
Our view the court members determined the accused’s guilt
by resolving the conflicting evidence between the victim
and the accused without resort to Captain Ebert’s
testimony. Our view is supported by the fact that after the
court members were instructed by the military judge
relative to the findings in the case, the president of the
court requested that the members be allowed to review the
complete testimony of the victim and the accused. When
the judge advised the president of the technical difficulties ~
involved in the “playback” of the requested testimony, the
president advanced an alternate method of resolving the
court members’ request. That method was to allow the
members to view the room in the base dental clinic where
lla
the offenses were alleged to have taken place. The request
was granted and the viewing accomplished.
[4] Wedo not find trial counsel’s cross-examination of
the accused to be such as to improperly bring before the
court evidence of the accused’s right to remain silent.
M.R.E. 301(f)(3). The aim of trial counsel’s questioning
was directed toward showing the court members that the
accused’s direct testimony regarding the inadvertant open
position of his “fly” was of recent origin and not toward
showing the accused exercised his constitutional right to
remain silent. The thrust of trial counsel’s findings argu-
ment in this regard supports our conclusion. United States
v. Reiner, 15 M.J. 38 (C.M.A.1983); United States v.
Moore, 1 M.J. 390 (C.M.A.1976).
With regard to the findings portion of the trial we con-
clude that the trial defense counsel’s failure to object in
those areas alleged was not so serious an error showing
counsel was not functioning as the “counsel” guaranteed
the accused by the Sixth Amendment. Nor do we find
counsel’s errors sO serious as to deprive the accused of a
fair trial. We are convinced the findings in this case would
reasonably likely have not been different had the errors
not been made. Strickland v. Washington; United States
v. Jefferson; United States v. Rivas; United States vy.
Walker, all supra.
{5} Captain Ebert’s testimony during the sentencing
part of the trial regarding recidivism was based on his ex-
periences and research concerning that subject. United
States v. Snipes, 18 M.J. 172 (C.M.A.1984); M.R.E. 702
and 703. His testimony and trial counsel’s comments
thereon during the sentencing argument tended toward in-
fluencing the court members to adjudge a sentence in the
case that would act as a deterrent to the accused with
respect to future similar misconduct. Deterrence evidence
and argument is generally permissible. United States v.
Thompson, 9 M.J. 166 (C.M.A.1980); United States v.
12a
Lania, 9 M.J. 100 (C.M.A.1980). Likewise, trial counsel’s
argument as to the “indignity, the humiliation” the victim
experienced by having to testify at the trial is generally per-
missible. United States v. Hammond, 17 M.J. 218
(C.M.A.1984); United States v. Marrshall, 14 M.J. 157
(C.M.A.1982). We find defense counsel’s failure to object
in this regard did not amount to such defective perform-
ances denying the accused a fair trial as to sentencing.’
Strickland v. Washington, supra.
Appellant also avers:
THE SPECIFICATIONS ARE MULTIPLICIOUS
FOR FINDINGS PURPOSES
[6] The accused has been charged with the offenses of
committing a lewd and lascivious act upon the victim by
exposing his penis to her, with intent to arouse and gratify
his lust, passions, and sexual desires (Specification 1) and
assault with intent to commit sodomy on the same victim
by placing his penis on her face (Specification 2), in viola-
tion U.C.M.J., Article 134. Both offenses were alleged to
have occurred at the same time and place. He was found
guilty of Specification 1, as charged, and, of Specification
2, by exceptions and substitutions, of committing a lewd
and lascivious act upon the victim by placing his penis on
her face, with intent to gratify his lust, passions and sexual
3 The military judge instructed the court members to consider the
facts and circumstances surrounding the commission of the offenses,
and all matters in extenuation, mitigation, and aggravation, properly
before them in determining an appropriate sentence. One of the mat-
ters in aggravation before the court was an Article 15, U.C.M.J.,
record of punishment imposed on the accused for the offense of inde-
cent assault upon a female under the age of 16 years. The offense was
alleged to have taken place at the base dental clinic while the accused
was in the performance of his duties.
——~
l3a
desires. Appellate Government counsel agree with ap-
pellant’s contention. We, too, agree. By its findings as to
Specification 2 the court found the accused guilty of the
same criminal offense which was alleged in Specification
1. They are duplicative as a matter of law.4 United States
v. Baker, 14 M.J. 361 (C.M.A.1983).
Accordingly, the findings of guilty of Specification 1 of
the Charge are set aside and dismissed and the findings of
guilty of Specification 2 of the Charge and the sentence are
AFFIRMED.
SNYDER and O’HAIR, Judges, concur.
* The military judge treated both specifications as multiplicious for
sentencing; therefore, the accused suffered no prejudice as to the
sentence. United States v. Allen, 16 M.J. 395 (C.M.A.1983). :
l4a
APPENDIX C
UNITED STATES AIR FORCE COURT OF
MILITARY REVIEW
ACM 24238 (f rev)
UNITED STATES
V.
STAFF SERGEANT JORGE A. GARCIA, FR 463-02-9196
UNITED STATES AiR FORCE
5 JUNE 1986
Sentence adjudged 9 June 1983 by GCM convened at
Eglin Air Force Base, Florida. Military Judge: Barton L.
Spillman. .
Approved sentence: Dishonorable discharge, confine-
ment for six (6) years and reduction to airman basic.
Appellate Counsel for the Accused: Colonel Leo L.
Sergi and Major Charles E. Ambrose, Jr. Appellate
Counsel for the United States: Colonel Kenneth R.
Rengert and Lieutenant Colonel Robert E. Giovagnoni.
Before
FORAY, MURDOCK and O’HAIR
~ Appellate Military Judges
DECISION UPON FURTHER REVIEW
FORAY, Senior Judge:
This case is once again before us for review.
On 13 July, 1984, this-Court affirmed the appellant’s
conviction by a general court-martial of one offense of
lSa
committing lewd and lascivious acts with a female under
the age of sixteen years, in violation of Article 134,
U.C.M.J.'! The Court also affirmed the adjudged and ap-
proved sentence which extends to a _ dishonorable
discharge, confinement at hard labor for six years, and
reduction to the lowest enlisted grade. United States v.
Garcia, 18 M.J. 716 (A.F.C.M.R. 1984).
On 19 September 1984, the appellant petitioned the
Court of Military Appeals for a grant of review of our
decision. That Court granted appellant’s petition on 11
October 1985. United States v. Garcia, 21 M.J. 153
(C.M.A. 1985). Subsequently, on 10 April 1986, that
Court ordered our decision set aside and the record of trial
returned to The Judge Advocate General for resubmission
to this Court for further consideration under Article 66,
U.C.M.J. United States v. Garcia, __ & Seen
(C.M.A. 1986). In its order that Court stated:
On further consideration of the granted issues (21
M.J. 153) it appears that issue II raised by appellate
defense counsel has not been considered by the
United States Air Force Court of Military Review. It
further appears that that court should consider the
specified issue in light of United States v. August, 21
M.J. 363, (C.M.A. 1986) and United States v. Snipes,
18 M.J. 172 (C.M.A. 1984), and its impact, if any, on
granted issue I. See Strickland v. Washington, 466,
U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984).
Issue II raised by appellate defense counsel before the
Court of Military Appeals and not previously considered
by this Court alleges:
THE ALLEGATIONS OF IMPROPER CON-
TACTS WITH THE COURT MEMBERS BY THE
MOTHER OF THE ALLEGED VICTIM, AND
' We set aside and dismissed another offense as being duplicative as
a matter of law. United States v. Baker, 14 M.J. 361 (C.M.A. 1983).
l6a
THE ALLEGATION OF PERJURY BY THE
ALLEGED VICTIM, REQUIRE THAT THE FIND-
INGS AND SENTENCE BE SET ASIDE, OR
THAT A REHEARING (SIC) PURSUANT TO
UNITED STATES v. DUBAY, 17 U.S.C.M.A. 147,
37 C.M.R. 411 (1967) BE ORDERED.
The specified issue and issue I are, sequentially:
WHETHER THE MILITARY JUDGE ERRED BY
— PERMITTING AN EXPERT WITNESS TO TES-
TIFY THAT APPELLANT FIT A PSYCHOLOGI-
CAL PROFILE COMMON TO THAT OF CHILD
MOLESTERS.
WHETHER THE APPELLANT WAS DENIED
THE EFFECTIVE ASSISTANCE OF COUNSEL.
One aspect of the allegation in issue II is that the mother
of the victim improperly contacted court members. The
basis for this allegation is a post-trial affidavit of a Mrs. S,
dated 12 June 1984, submitted to the Court of Military
Appeals by appellant to support a Petition For New
Trial.2 The part of the affidavit pertinent to this aspect of
the issue is:
During the trial, SHEILA® said she had the upper
hand because someone she knew from the bowling
alley was on the jury. SHEILA stated that she kept in
contact with this person regularly and knew exactly
what the jury was thinking at all times. Also SHEILA
said that through this person she could maintain the
sympathy of the jury.
With regard to these averments of Mrs. S, appellate
counsel have submitted affidavits of the victim’s mother
2 The Petition For New Trial was denied on 11 October 1985.
United States v. Garcia, 21 M.J. 155 (C.M.A. 1985).
3 Shiela is the mother of the victim.
wey Abas
17a
and a Captain S—the court member alluded to by Mrs. S
to have been improperly contacted. In her affidavit, the
victim’s mother denies having any contact with any of the
court members during the court-martial of appellant. In
his affidavit, Captain S claims he knew the victim and
members of the victim’s family prior to the court-martial,
but contact with them was merely in “passing”.+ Other af-
fidavits and documents submitted with regard to this mat-
ter indicate that nothing improper occurred between any
of the court members and the mother of the victim.
The second aspect of issue II once again has its genesis
in the 12 June 1984, affidavit of Mrs. S. Mrs. S stated
therein that in the spring of 1983, her eleven year old
daughter told her that the victim told her, the daughter,
that what she, the victim, said about the incident in the
hospital was not all true. According to Mrs. S’s daughter,
the victim said she made some of it up so her mother
would be worried and, if worried, would buy the victim
new clothes and she would be allowed to do anything she
wanted. An affidavit from the victim has been submitted
with regard to this aspect of the issue in which she denies
being untruthful at the court-martial. She also claims, “At
no time before, during, or after the Garcia court-martial
did I tell anyone that the things I told about the hospital
were not true. What I said in court was the truth.”
We must now determine whether the issue presented by
appellant in issue II reguires either the findings and
sentence to be set aside or that a hearing be ordered pur-
suant to United States v. DuBay, supra. To begin, we note
* At an Article 39a, U.C.M.J., session held without the other court
members present, Captain S voluntarily revealed his knowledge of the
victim and family. He further stated that this knowledge would not in-
terfere with his ability to perform as a member of the court-martial.
18a :
both aspects of this issue were founded upon hearsay
declarations of Mrs. S and not upon any personal
knowledge on her part. Also, these hearsay declarations
have been contradicted by sworn statements of others who
would have had personal knowledge of either of the
alleged wrongdoing. Significant, we think, in our deter-
mination of what weight, if any, should be given to the
averments of Mrs. S is the fact that her revelations were
made over one year after the appellant had been tried and
convicted even though she stated she was aware of these
supposed acts of misconduct prior to and during his trial.°
Her belated statement, along with its hearsay nature, com-
pel us to conclude it should not be afforded any weight.
Accordingly, we find that issue II is not supported by any
evidence warranting the setting aside of the findings and
sentence in the case or to raise an issue requiring a return
of the record of trial to the convening authority for pur-
poses of a DuBay hearing. United States v. DuBay, supra;
M.R.E. 801. See United States v. Bishop, 11 M.J. 7
(C.M.A. 1981); United States v. Bourchier, 5 U.S.C.M.A.
15, 17 C.M.R. 15 (1954).
At appellant’s trial Captain Bruce W. Ebert testified as
an expert in the field of clinical psychology during the
presentation of the prosecution’s case-in-chief. He testi-
fied that a battery of psychological tests was administered
to the appellant and that several lengthy interviews were
conducted with him. It was Captain Ebert’s opinion, as a
result of the testing and interviews, that appellani fit the
psychological profile of a “child molester” and was
capable of committing the offenses charged.* He also
5 Appellant’s court-martial took place on 7, 8, and 9 June 1983.
6 The testing and interviews conducted of appellant was alleged to
be “relied upon by people in the psychological and psychiatric com-
munity (sic) as indicators of personality traits and that sort of thing.”
19a
testified that one of the validity scales contained within the
psychological test performed was very elevated indicating
the appellant had a tendency to “present himself in a way
that is far beyond what would be expected of him even
though that is contrary to his basic nature.” Neither Cap-
tain Ebert’s qualifications as an expert witness nor any of
his testimony was objected to by trial defense counsel.
Since this testimony was elicited from the expert witness
before the appellant testified, it appears the only purpose
of the testimony was to provide evidence that appellant
was more likely than not to have sexually abused the vic-
tim. The admission of the testimony, then, was counter to
the rule regarding character evidence. According to
M.R.E. 404(a):
Evidence of a person’s character or a trait of a
person’s character is not admissible for the purpose of
proving that the person acted in conformity therewith
on a particular occasion, except:
(1) Character of the accused. Evidence of a pertinent
trait of the character of the accused offered by an ac-
cused, or by the prosecution to rebut the same.
However, because there was no objection interposed by
trial defense counsel to any of the testimony in question no
error may be predicated upon the ruling by the military
judge admitting the evidence. M.R.E. 103(a)(1). See
United States v. August; United States v. Snipes, both
supra.
We must now determine whether trial defense counsel’s
failure to object to the expert’s testimony denied appellant
the effective assistance of counsel. For the reasons stated
in Our Original decision in the case, we find that he was
not. United States v. Garcia, 18 M.J. 716 (A.F.C.M.R.
1984) and cases cited therein. See United States v. DiCupe,
21 M.J. 440 (C.M.A. 1986).
20a
Accordingly, the findings of guilty, as we had pre-
viously modified them, and the sentence are
AFFIRMED
Judge MURDOCK and O’HAIR concur.
OFFICIAL
/s/ FELIX LANDAU
Felix Landau
Captain, USAF
Chief Commissioner
DEFENSE EXHI BIT =
—__ FORD
OFFERED PACE 16
ADMITTED (Reseeted) PAGE =. tee
DEFENSE EXHIBIT a a oe
OFFERED PAGE 10
ADMITTED (Reject) PAGE: _ /D
Ra cane en a A al SOR TY A ace te I CY hie Cota ht tae il EB Li incl ais At thy at A A 4 AA ts
23a
STATEMENT OF WITNESS
AFOSI Det 710, Eglin AFB, FL
(Place)
12 Jun 84
(Date)
t, JOAN C. SEILER » hereby state that
Frances L. Shel! has identified himself ‘to ae
as Special Acent usar.
(Special Agent AFOS!, Secunty Police, Other--Specily)
do hereby voluntarily and of ay own free will sake the following statement without
having been subjected te any coercion, unlawful influence or unlawful inducement.
In the spring 1983, prior to the trial date, my daughter, PAM, age 11, told me of a
conversation she had with JENNIFER ARLEN. This conversation took place in school
at PAM's locker. JENNIE told PAM that the things she told about the hospital
incident weren't all true. JENNIE said she made some of it‘ up so her mother would be
worried. According to JENNIE, if her mother was worried she would get new clothes
and be able to do anything she wanted to. This disturbed PAM. She had known JENNIE
to be untruthful before, but she felt this was really serious. At the time, I told
PAM not to worry. I assured her that if JENNIE was lying about something this would
a]l come out during the trial — Good
i so prior to the trial date, sometime in Apr or May 1983 on a Wednesday evening
Mrs SHEILA ARLEN and I were baking cookies with the girl scouts at a regular weekly
meeting. She asked me to step into the other room for apjnute. I did so reluctantly,
I felt very uneasy listening to anything about the whol cident. However, I knew
if I didn't go into the other room, SHEILA would say something in front of the girls
or just call me later. SHEILA then told me that she had just found out that JENNIE
a have to take a polygraph. According to her JENNIE was now off the hook and
d it made
ring the trial, SHEILA said she had the upper hand because someone she knew from
the bowling alley was on the jury. SHEILA stated that she kept in contact with
this person regularly and knew exactly what the jury was thinking at all times. Also
SHEILA said that through this person she could maintain the sympathy of the jury.
rior to and during the trial SHEILA made frequent reference to the fact that she
had friends in “Investigations”, “Social Actions", and “OSI". She said she had free
access to all information about ihe sergeant involved. This included a folder of
unfavorable information made available to her by a working with the OSI.
SHEILA claimed she read this folder cover to cover Gaul
Kf nce I worked with SHEILA ARLEN as a co-leader for a gir! scout troop last year, I
had frequent conversations with her. It is difficult to remember exactly what was
said n since this all occurred a year ago. The statements I've made in the above
paragraphs are things I remember being said during these specific conversations. At
other times I was told of the defendant's Article 15, that the commander of the
Dental Clinic was trying to cover it up, and that FOL WYCOFF gave SHEILA his full
Support so they could “nail this individual. 57
AF fm 1169 ~ U8 GOVEReRNT PRertes OFMCE Vem. °'¢.9/9/3803 Page 1 of “ Pages
24a
CONTINUATION SHEET FOR AF FORM 1168 and 1169
THIS PAGE FOR SIGNATURE ONLY
fC
1 fecther stete thet I heve reed
stetement, eng that it is correct and true 6s written.
M- ld) PX. by lew te odminister cathe, this
aS. ie
thie entice statement, initicied ell pages and corrections, and signed thie
fooled
Subseribed ond seore to belere ae, & person wow lis
1 24
(SO. ne
(Bs qnetere) t 710
( 4060000)
F
nt
(Tree Mame. Geode & Tithe of Person Adninieateriang Geeh )
Sede Tei. UE SB acedl. bee sb Oks pte
AF fem 1170
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25a
AFFADAVIT
COMES WOW THE AFFIANT, AND SAYETH:
I, Petricia L. Larson, swear and affirm thet;
I wae sesigned as the Area Defense Counsel at Hurlburt Field, Florids
in March of 1983. In such capacity, I represented SSgt Jorge Garcia in
his Court-Martial on charges of committing a lewd and lascivious act and
aseault with intent to commit sodomy.
During the course of the above mentioned courts-martial, I failed ‘to
object to the following testimony and argument;
A) Testimony by Cape (Dr.) Bruce Ebert on findings,
B) Testimony by Cape (Dr.) Bruce Ebert on sentencing regarding recid-
iviem rate of child molesters,
C) Argument by trial counsel concerning the necessity of the victia
testifying at the trial and the resultant emotional impact on the victia,
D) Argument by trial counsel concerning rehabilitation of SSgt
Garcia.
I did not object to the above matters because I did not recognize or
realize that such matters were inadmissable.
At the time I represented SSgt Garcia, I hed been certified as « Trial
Counsel for approximately three months. I had acted as counsel in
approximately six to seven court-martials. One or two of those trials had
been litigated.
Recognising wy inexperience and feeling uncomfortable with it, I had
requested Circuit Defenee assistance in representing SSgt Garcia. I was
informed by che Chief Circuit Defense Counsel that no one was available to
aseist me, as all the Circuit Defense Counselse were unavailable during the
time period in question. Thus, I proceeded alone.
I believe chat SSgt Garcie had a right to be represented by competent,
experienced counsel. Unfortunately for all, I did not provide such repre-
sentation.
“Kh L. We 3
Subscribed and sworn to before me this 2f ay of Merch, 1984 at Aviano
Ayt) Base, Italy.
RICHARD Hitl/DINSON, Cept, USAF
\ | | Asoslcteni Ciaif Jucg2 Advocate
‘ . 308-64-1355
& U.S. GOVERNMENT PRINTING OFFICE: 19867— 194-245/62002
ry
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