Opposition Brief — Garcia v. United States

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DEC 18 BET

No. 87-619 SA

In the Supreme Court of the

OCTOBER TERM, 1987.

JORGE A. GARCIA, 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

JEFFREY H. Curtis

Capt., 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

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILE BE ISSUED,

QUESTIONS PRESENTED

1. Whether it was plain error to admit expert

testimony that petitioner fit a psychological profile com-

mon to child molesters.

2. Whether petitioner is entitled to a new trial on the

basis of hearsay allegations that the victim committed per-

jury.

3. Whether petitioner was denied the effective

assistance of counsel.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Strickland v. Washington, 466 U.S. 668 (1984) ......... y

Statutes and rules:

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

801 et seq.: ‘

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(III) *

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-619

JORGE A. GARCIA, 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 order of the Court of Military Appeals (Pet. App.

la) is reported at 25 M.J. 159. The initial decision of the

Air Force Court of Military Review (Pet. App. 2a-13a) is

reported at 18 M.J. 716. A subsequent opinion of the Air

Force Court of Military Review on remand (Pet. App.

14a-20a) is unreported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on August 18, 1987. The petition for a writ of cer-

tiorari was filed on October 16, 1987. The jurisdiction of

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

STATEMENT

Following a general court-martial before the military

judge at Eglin Air Force Base in Florida, petitioner, a

member of the United States Air Force, was convicted on

two counts of committing lewd and lascivious acts on a

(1)

2

female under 16 years of age, in violation of Article 134 of

the Uniform Code of Military Justice (UCMJ), 10 U.S.C.

934. He was sentenced to six years’ imprisonment, a

dishonorable discharge, and ancillary punishments. The

convening authority approved the sentence.' The Air

Force Court of Military Review affirmed the findings and

sentence (Pet. App. 2a-13a). The Court of Military Ap-

peals granted review (21 M.J. 153 (1985)), vacated the

judgment of the Air Force Court of Military Review, and

remanded the case to that court (22 M.J. 192 (1986)). On

remand, the Air Force Court of Military Review reaf-

firmed petitioner’s conviction (Pet. App. 14a-20a). The

Court of Military Appeals affirmed (id. at 1a).

1. On February 18, 1983, 11-year old Jennifer Arlen

visited the dental clinic at Eglin Air Force Base for

routine dental treatment (Tr. 40). At approximately 2

p.m., Jennifer was escorted to a room at the clinic to have

her teeth cleaned by petitioner (Tr. 41). Petitioner told

Jennifer to sit in the dental chair. He then adjusted the

chair so that her feet were higher than her head, and he

began to clean her teeth (Tr. 42). Jennifer later heard peti-

tioner’s panis unzip (Tr. 42, 50-51) and saw petitioner

place a dark cloth on his lap (Tr. 42). Jennifer noticed that

petitioner was quiet, but nervous and shaking (Tr. 43).

Petitioner then told Jennifer to shut her eyes tightly, and

he moved her head toward his lap. She tried to pull away,

but petitioner moved her head back so that she could not

move. He then told her to shut her eyes tightly. Just before

she did, Jennifer Arlen saw petitioner move his penis

' Petitioner had previously been punished for a similar offense the

year before at a proceeding under Article 15 of the UCMJ, 10 U.S.C.

815 (PX 2, Tr. 164). That incident also occurred while petitioner was

acting as a dental technician (PX 2).

3

towards her mouth (Tr. 43, 45, 50). A few seconds later,

Jennifer felt it touch the side of her mouth before peti-

tioner moved away. Petitioner then started “messing” in

the corner (Tr. 43). Although Jennifer Arlen was afraid

during the incident, she was unable to scream because she

had dental equipment in her mouth (Tr. 43, 51). When

Jennifer was preparing to leave, petitioner handed her an

appointment slip. Jenifer pretended to read the appoint-

ment slip and saw that petitioner’s pants were unzipped.

She stared for a few seconds to make sure that she had not

imagined the incident (Tr. 43).? _

After leaving the room, Jennifer returned to her

mother, who was waiting outside. A family friend who

was also a dental technician, Sergeant Kay Kauffman, was

standing with Jennifer’s mother (Tr. 56). According to

Sergeant Kauffman, Jennifer looked confused and scared

(Tr. 56, 57). Jennifer looked back at petitioner’s treatment

room for three or four seconds, then looked at her mother

and broke into tears (Tr. 57). According to Sergeant Kauf-

fman, Jennifer mumbled to her mother that “[petitioner]

kept forcing my head to the right and that his zipper was

down” (Tr. 58).

2. The prosecution called a psychologist, Captain

Bruce Ebert, to testify at trial. The trial court accepted

Captain Ebert as an expert witness qualified in clinical

psychology (Tr. 59, 60). Captain Ebert testified that he

had administered a battery of psychological tests to peti-

tioner and had also conducted several lengthy diagnostic

2 When recalled as a defense witness, Jennifer Arlen testified that

she knew what a penis looked like and that she was positive that she

saw petitioner’s penis and not his finger (Tr. 99-100). On cross-

examination by the prosecution, Jennifer added that when she saw

petitioner’s penis, it was protruding from his fly and his hands were

behind her head (Tr. 100). As a prosecution witness, Jennifer had

testified that petitioner’s fingers were not near his penis, and that she

was sure he was not wearing a glove or anything on his finger except a

ring (Tr. 52).

4

interviews (Tr. 60-61a). Based upon those tests, Dr. Ebert

gave an opinion as to how petitioner viewed himself and

how he related to adult women (Tr. 62). He also gave an

opinion that individuals who have some question about

their own virility and feel that adult women are unap-

proachable in some way turn to children to express their

sexual impulses (Tr. 62). In addition, Dr. Ebert testified

that petitioner was trying to present himself in a favorable

light (Tr. 63) and that petitioner had a test score on one

scale that was consistent with a personality type that tends

to be extremely defensive. He explained that persons with

that personality type tend to rely on repression and denial

as defense mechanisms, /.e., they try to suppress conscious

awareness of unacceptable impulses (Tr. 63). Based upon

the tests and his interview with petitioner, Dr. Ebert con-

cluded that petitioner’s profile was fairly consistent with

the profiles of individuals who in his experience molested

children (Tr. 65).

The defense did not object to Dr. Ebert’s testimony. On

cross-examination, Dr. Ebert conceded that: (1) a person

could take the same battery of tests as petitioner and fit

within the profile of a sex offender, but never commit a

sexual offense (Tr. 65); (2) the tests that he administered

can prove absolutely nothing in terms of predicting a per-

son’s behavior, i.e., whether he committed a certain act

(Tr. 65); (3) the tests are not used for prediction in any

manner, and are used only in research studies (Tr. 66); and

(4) from the tests, Dr. Ebert could only descibe what is

consistent and what is correlated, and could not describe a

causal relationship (Tr. 66). Dr. Ebert further stated that

having a psychological profile of a sex offender does not

mean that a person will commit a sex offense (Tr. 66). In

fact, Dr. Ebert testified that on one occasion he had ad-

ministered tests to a self-confessed child molester, and the

subject showed a normal psychological profile (Tr. 67).

On redirect examination, Dr. Ebert testified that, given

his own investigation into petitioner’s thought processes,

he could not rule out the possibility that petitioner had

committed the charged offense (Tr. 66). On further cross-

examination, however, Dr. Ebert conceded that it is possi-

ble that his views on petitioner’s personality test results

were colored by his prior knowledge of the allegations in

this case (Tr. 67). Dr. Ebert also acknowledged that he

could never completely rule out the possibility that a per-

son had committed a sex offense (Tr. 66-67).

The defense called several witnesses on petitioner’s

behalf to support the theory that Jennifer was mistaken as

to what she saw.’ Petitioner also testified in his own

3 Sergeant Kauffman was recalled as a defense witness and testified

that she saw Jennifer in petitioner’s chair at the time in question (Tr..

73). As a technician, she said she had on occasion moved a patient’s

head closer to her body and had also instructed patients to close their

eyes when she was cleaning their teeth, that it was normal for peti-

tioner to use a lap towel, and that petitioner would wear gloves when

he cleaned the teeth of certain patients (Tr. 75). The defense also

called Sergeant Reid, who testified that petitioner’s movement of Jen-

nifer’s head, his use of a lap towel, gloves or a finger kot, and his re-

quest to a patient to shut her eyes tightly were all normal occurrences

during a dental cleaning (Tr. 92). Sergeant Reid also said that the

treatment room doors were usually left open while dental technicians

were working (Tr. 95-96). Lavawne Dehart testified that between 2

p.m. and 2:30 p.m. on the day in question she went into petitioner’s

treatment room for a few seconds to deliver some paperwork and saw

petitioner working on a female patient with brown hair (Tr. 84-85).

She did not see petitioner’s towel or the color of the patient’s dress (Tr.

87), and she generally did not see anything out of the ordinary at any

time while she was there (Tr. 85). A stipulation of expected testimony

established that another dental technican, Sergeant Jeannette Tur-

nage, glanced into petitioner’s room at approximately 2:30 p.m. dur-

ing Jennifer’s appointment and saw nothing unusual (Tr. 88-89).

The co-workers also testified that there was a lot of traffic in the

hallway outside of petitioner’s room. On cross-examination of

Sergeant Reid, the prosecution brought out that due to the appoint-

ment schedules, the traffic would be heavier on the quarter and half

6

defense and denied molesting Jennifer (Tr. 105). He

testified that he normally used a lap towel during examina-

tions and that he did so during Jennifer’s examination,

that he did ask her to close her eyes, that his door was

open while he was examining Jennifer, and that he moved

Jennifer’s head toward his body to get access to her mouth

(Tr. 102). He testified that these were normal procedures

that he followed when cleaning teeth (Tr. 102). Petitioner

said that he used a finger kot during Jennifer’s appoint-

ment (Tr. 103; see Pet. App. 22a). Petitioner admitted that

his pants were unzipped while Jennifer was in the room

(Tr. 104). He explained, however, that he had gone to the

bathroom just before her appointment, that he neglected

to zip his pants afterwards, and that he did not discover

that his pants were unzipped until he stood up and re-

moved the towel from his lap after cleaning Jennifer’s

teeth (Tre 110-111). On cross-examination, the prosecutor

pointed out that petitioner did not offer that explanation

when confronted by Mrs. Arlen on the day of the incident

or to anyone else that day (Tr. 112, 113).

ARGUMENT

1. Petitioner argues (Pet. 8-19) that the trial court

erred by allowing Dr. Ebert to give his opinion that peti-

tioner fit the psychological profile of a child molester. The

Court of Military Appeals agreed with petitioner on that

point, ruling that Dr. Ebert should not have been per-

mitted to state that conclusion (Pet. App. la). The court

noted, however, that petitioner did not object to the

testimony, and it held that the admission of that testimony

did not amount to plain error (ibid.). For that reason, the

propriety of the admission of Dr. Ebert’s conclusion—to

hour, as opposed to any other time in that corridor (Tr. 93). Addi-

tionally, because of the lap towel and the positioning of the dental

couch, Sergeant Kauffman testified that she could not tell if peti-

tioner’s pants were unzipped (Tr. 78).

7

which petitioner devotes most of his petition (Pet.

8-18)—is not at issue here. Instead, the only issue pre-

sented by the admission of Dr. Ebert’s testimony is

whether the error in admitting his conclusion that peti-

tioner fit the profile of a child molester is cognizable in

spite of petitioner’s failure to object at trial. That issue

does not warrant review by this Court.

The court of military review correctly held that the ad-

mission of Dr. Ebert’s conclusion did not have a substan-

tial impact on the outcome of the case (Pet. App. 10a). As

the court explained (ibid.), petitioner neutralized the

damaging effect of Dr. Ebert’s testimony on cross-

examination. Dr. Ebert conceded that he could not con-

- clude whether petitioner had committed the charged of-

fense, and he conceded that the tests he had given peti-

tioner did not predict or indicate the presence of aberrant

sexual behavior. Moreover, although the prosecutor did

refer to other aspects of Dr. Ebert’s testimony during his

closing argument, the prosecutor did not refer to the con-

clusion that petitioner challenges (Tr. 125-130, 143-147).

Because Dr. Ebert’s conclusion had little, if any, effect on

the outcome of the case, the admission of that evidence

did not result in a miscarriage of justice and thus was not

cognizable as plain error.

2. Petitionet also claims (Pet. 19-20) that the military

courts erred in denying his motion for a new trial on the

basis of an affidavit alleging that Jennifer Arlen had

stated that she had lied about the incident.‘ As the court of

military review explained (Pet. App. 16a-18a), approx-

imately a year after the trial petitioner submitted an af-

fidavit prepared by Joan Seiler, who knew both Jennifer

and Jennifer’s mother. In the affidavit, Seiler stated that

she had been told by her daughter that Jennifer had said

that she had lied about the incident (id. at 23a). Jennifer

4 That claim was discussed by the court of military review on re-

mand from the Court of Military Appeals (Pet. App. 16a-18a).

8

submitted an affidavit in response in which she said that

she had told the truth at trial (id. at 17a).5 The court of

military review denied petitioner’s motion for a new trial

on the ground that Seiler’s allegations were hearsay, that

the allegations were contradicted by the sworn statement

of Jennifer Arlen, and that Seiler made her allegations

more than a year after the trial, even though Seiler was

aware of the supposed misconduct prior to and during the

trial (id. at 18a).°®

Petitioner argues that the court of military review erred

in ruling that the allegations were hearsay, but that argu-

ment lacks merit. Seiler’s affidavit reported statements —

purportedly made by Jennifer Arlen to Seiler’s daughter ©

who, in turnyrelayed the statements to Seiler. The evidence

was therefore clearly hearsay — indeed, the affidavit’s ver-

sion of what Seiler’s daughter said Jennifer Arlen said is

triple hearsay. Petitioner’s claim that Seiler’s allegations

were not hearsay since they were prior inconsistent

statements by Jennifer Arlen and were admissible under

Mil. R. Evid. 801(d)(1)(A) is mistaken. Under the rule, a

prior inconsistent statement is nonhearsay only if it was

* Seiler also alleged that Jennifer Arlen’s mother has also said that

she knew and was in contact with a member of the court-martial

panel, that Mrs. Arlen knew what the panel was thinking, and that

Mrs. Arlen could maintain the panel’s sympathy through this person

(Pet. App. 16a, 23a). In response, Mrs. Arlen and the court member

alluded to by Seiler filed affidavits in which they denied any miscon-

duct (id. at 16a-17a). After reviewing all the evidence on this issue, the

court of military review found that the evidence indicated that nothing

improper had occurred between any of the court members and Mrs.

Arlen (id. at 17a). Petitioner does not challenge that conclusion in this

Court.

* The Court of Military Review has the authority under Article

66(c), UCMJ, 10 U.S.C. 866(c), in considering the evidence to “weigh

the evidence, judge the credibility of witnesses, and determine con-

troverted questions of fact, recognizing that the trial court saw and

heard the witnesses.”

9

made under oath in a prior judicial hearing or at a deposi-

tion, and the statements of Jennifer Arlen and Seiler’s

daughter were not made in such proceedings. In these cir-

cumstances, the court of military review properly held that

petitioner’s claim lacked a sufficient factual basis to justify

further proceedings.

~ 3, Petitioner also contends (Pet. 20-21) that he was

denied the effective assistance of counsel because his at-

torney did not object to Dr. Ebert’s testimony. As he

presents it, that claim is not materially different from peti-

tioner’s claim that the admission of Dr. Ebert’s testimony

was plain error. Thus, even if defense counsel erred by

failing to object to Dr. Ebert’s testimony on direct ex-

amination, the error does not entitle petitioner to a new

trial, because petitioner was able to neutralize any adverse

impact of Dr. Ebert’s testimony on cross-examination, as

the court of military review found. See Strickland v.

Washington, 466 U.S. 668 (1984) (requiring the defendant

to establish prejudice before he is entitled to a new trial).

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

JEFFREY H. CURTIS

Capt., OJAG, USAF

MARC VAN Nuys

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

DECEMBER 1987

» US GOVERNMENT PRINTING OFFICE. 1987— 202-037/60176