Petition for Writ of Certiorari — Lips v. Commandant, United States Disciplinary Barracks
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93-503 ~~ =
No. 93-
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
WILLIAM M. LIPs,
Petitioner.
Vv.
COMMANDANT, UNITED STATES
DISCIPLINARY BARRACKS.
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
JAN HORBALY
5310 Renaissance Court
Burke, Virginia 22015
(703) 978-7909
Date: September 28, 1993 Counsel for Petitioner
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001
QUESTIONS PRESENTED
|. Whether an Article Ili judge—who grants a_peti-
tion for a writ of habeas corpus on finding that a service-
man’s constitutional rights were violated at his court-
martial—erred in considering the writ because a military
court “fully and fairly” considered the constitutional is-
sues and found no error.
A. Whether an Article II] judge—who grar.s a ser-
viceman’s petition for habeas corpus on finding that the
prosecutor's extensive references to the serviceman’s post-
arrest silence during cross-examination and closing argu-
ment constituted plain error—erred in granting the writ
because a military court “fully and fairly considered” the
constitutional issue and found no error.
B. Whether an Article III judge—who considers a
serviceman’s petition for habeas corpus alleging he was
denied due process of law at his trial because specific in-
tent evidence, that is, evidence of motive, intent, plan,
and design, was improperly admitted to prove general
intent crimes—erred in considering the writ because a
military court “fully and fairly considered” the constitu-
tional issue and concluded that specific intent evidence
was admissible to prove general intent crimes.
(i)
il
LIST OF PARTIES
Plaintiff-Petittoner ts Wilham M. Lips. Defendant-
Respondent is the Commandant, United States Disciph
vary Barracks.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ... ILD, PR ; i
LIST OF PARTIBS ............... aes il
TABLE OF AUTHORITIES .............. aes a iv
OPINIONS BELOW ........... ME a ee 1
JURISDICTION .............. = ag SA = core 2
STATUTES INVOLVED . . 2
STATEMENT OF THE CASE ' . pd 3
A. Facts 3
B. General Court-Martial HERNIA RRS 5
C. United States Air Force Court of Military Re-
view err toe Et Bs a anes oe 9
D. United States Court of Military Appeals 11
E. United States District Court .. 11
F. Court of Appeals for the Tenth Circuit 14
REASONS FOR GRANTING THE WRIT .................. 18
I. CONFLICT IN THE CIRCUITS ON THE
SCOPE OF FEDERAL COURT REVIEW OF
MILITARY HABEAS CORPUS PETITIONS... 18
Il. ELIMINATION OF FEDERAL COURT RE-
VIEW OF MILITARY COURT DECISIONS IN
I ona cevcttannbonecenneees 22
Ill. THE MILITARY COURT APPLIED THE
WRONG LEGAL STANDARDS IN REVIEW-
ING THE CONSTITUTIONAL ISSUES PRE-
SENTED BY LIPS IN THE APPEAL OF HIS
COURT-MARTIAL CONVICTION _........ 25
A. Post-Arrest Silence Issue ..... ee MAE SE SEROUS 26
B. Specific Intent Evidence Used to Prove Gen-
eral Intent Offenses 28
CONCLUSION .... 0 OS a 2 Se A ER As ee ee 30
(iil)
ee ee
iv
TABLE OF AUTHORITIES
Cases Page
Allen v. VanCantfort, 436 F.2d 625 (1st Cir.)
cert. denied, 402 U.S. 1008 (1971) .............0000...... 21
Avrech v. Secretary of the Navy, 520 F.2d 100
(DCC 1975), cert. denied, 425 U.S. 970 (1976). 21
Burns v. Wilson, 346 U.S. 137, rehearing denied,
ey Ca ee RE ee ca ee 19, 20
Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975),
cert. denied sub nom., Calley v. Hoffman, 425
oe Me Ge | nar Nanas NRE oe Te ee 20, 21
Daigle v. Warner, 348 F. Supp. 1074 (D.C. Hawaii
1972), rev’d on other grounds, 490 F.2d 358
| IARI ARR AA SOO ORR TO 21
a hig v. Madigan, 223 F.2d 906 (7th Cir.
| EISEN Fo AP SADIE RRS S31 SE nc E SO 21
Pr v. Zelez, 917 F.2d 1250 (10th Cir. 1990)... 12, 15,
23, 27
Doyle v. Ohio, 426 U.S. 610 (1976) 0.00... 10, 27
Hatheway v. Secretary of the Army, 641 F.2d 1376
(9th Cir.), cert. denied, 454 U.S. 864 (1981). 21
Jackson v. Taylor, 353 U.S. 569 (1957) —....00 0. 21
Kauffman v. Secretary of the Air Force, 415 F.2d
991 (DCC 1969), cert. denied, 396 U.S. 1013
GRASSI Rae nce anette) 2) en OC ND 21
Kasey v. Goodwyn, 291 F.2d 174 (4th Cir. 1961),
cert. denied, 368 U.S. 959 (1962) _....000..0000000... 21
Lips v. Commandant, United States Disciplinary
Barracks, F. Supp. (D.C.K. #88-3396,
I Wt Ie po cel dese ranetans a etbenceesaarnutekon enue , pS
Lips v. Commandant, United States Disciplinary
Barracks, F.2d (10th Cir. #92-3359,
BR ti I oactrincolanietecnuiiecsniassdticadshtauinmeata en oa: 2, oe
Lovely v. United States, 169 F.2d 386 (4th Cir.
1948), cert. denied, 338% U.S. 834 (1949) 28, 29
Morgan v. Hall, 569 F.2d 1161 (1st Cir.), cert.
denied, 437 U.S. 910 (1978) .........0000--e.. 6
Schlesinger v. Councilman, 420 U.S. 738 (1975) . - 20
Shaw v. United States, 357 F.2d 949 (Ct. Cl.
| ARRAS RAPA E SRE Cee Na UN aR ORD 22
United States v. Arnold, 425 F.2d 204 (10th Cir.
PRI Ne Pe ON ELAR 6 SMA Ae ALN ORL SOA RSE a 26
Vv
TABLE OF AU” ~RITIES—Continued
Page
United States v. Biswell, 700 F.2d 1810 (10th Cir.
1983) ...... a a eR aes a ote a tea, 9
United States v. Hic kson, 22 M.J. 146 (CMA
BEDIUED iccscscosecvedindnsdstinnhientigaebicbesinsaniaeiuanesdicatiaamemmmanded 29
United States v. Lips, 20 M.J. 679 (AFCMR
: : IRIS Scents nad earn unarey taN Womr a ennet 1,10, 11
United States v. Lips, 24 M.J. 45 (CMA 1987) ........ 1
United States v. Lips, 24 M.J. 203 (CMA 1987)... 1
United States v. Nolan, 416 F.2d 588 (10th Cir.),
cert. denied sub nom. Nolan v. United States
District Court for the District of Kansas, 396
6 A: Bg | SRR nee eit pr earner 26
United States v. Soundingsides, 820 F.2d 1232
(10th Cir.) pet. for rehearing denied, 825 F.2d
BO TE Ps ssieccstoitinecsninaeeaieeaaaneen 28
Watson v. McCotter, 782 F.2d 143 (10th Cir.),
cert. denied, 476 U.S. 1184 (1986) ..................... 17
Weiss v. United States, 36 M.J. 224 (CMA 1992),
cert. denied, U.S. —— (No. 92-1452, May
Statutes
Rules
A) Rr eeecne er oO eMeu eR erste aR Me Lee 18
White v. Humphrey, 212 F.2d 503 (3rd Cir.), cert.
denied, 348 U.S. 900 (19G4) .........2ccecccccene-cecesoressacese 21
Article 120(a), U.C.M.J. 10 U.S.C. Sec. 920(a)
CRIS soicsaccaciscrusnssoiasiavinaieaebadcatamena ae ae
Article 125, /U .C.M.J., 10 U.S.C. Sec. 925 (1988)... 1,5
Article 128, U.C.M.J., 10 U.S.C. Sec. 928 (1988) ... 1.3
28 U.S.C. Sec. ET CI nintkicsid eee 2. i3
OR UIE Bae, BETES: CRIED cctesccnsncinccscaseneeen aS 2
ae Te A icascccecesvcécbeeensdaubenndianiudagentieaeamandas 11
ee Te I ocisccecenccocszesenstndetasedliabeeielasieaanieenc 11
TE Oe NE BI 5 oo. nconcsseccedcsonanuccoremaacenedettenmeemes 11
WE De ee BOD nok cies cca ssocspoamniissinsecontntnamaienen 11
WEE Oe Ge, BEG OF Don cvicctecsnercneccnseceaemnensnmannneens 6
Articles and Books
J. BisHop, JR., JUSTICE UNDER FIRE: A STUDY OF
MILITARY LAW (New York: Charterhouse, Inc.,
GIG) cccccnsnascetecsnienincctntiimnntclaiduinisianimmmnanmetinants 19, 20
vi
TABLE OF AUTHORITIES—Continued
Bishop, Jr., Civilian Judges and Military Justice:
Collateral Review of Court-Martial Convictions,
81 CoLUM. L. REV. 40 (1961) .................:.0000000......
Burris & Jones, Civilian Courts and Courts-Martial
—the Civilian Attorney's Perspective, 10 AM.
CRIM. L. REV. 189 (1971) ................ aaa eneee ina:
Karlan & Pepper, The Scope of Military Justice,
43 J. CRIM. L. CRIMINOLOGY & POLICE SclI. 285
DUMIMINIDE sescosconsenvvedéeumnausnacecesausoesianit emit ine at aree
Katz & Nelson, The Need for Clarification in Mili-
tary Habeas Corpus, 27 OHIo St. LJ. 193
DIY acinisindasuucebavvesiieanatiateteada te
Rich, Federal Court Scope of Review Over Military
Habeas Corpus Cases, 6 MEMPHIS ST. U.L. REv.
BF EIR shvinrivsieetsceccciemenaudaien ee
Warren, The Bill of Rights and the Military, 37
Peet eeleea OTs SON CHBGE ® occ.
Weckstein, Federal Court Review of Courts-Martial
Proceedings: A Delicate Balance of Individual
Rights and Military Responsibilities, 54 Min. L.
De B COED vvcesevctivscncenennicesiineacedticcinaa
Page
20
PETITION FOR A WRIT OF CERTIORARI
William M. Lips petitions for a writ of certiorari to
review an opinion and judgment of the United States
Court of Appeals for the Tenth Circuit entered on July 1,
1993. The United States Court of Appeals for the Tenth
Circuit reversed the opinion and judgment of the United
States District Court for the District of Kansas which
(1) granted William M. Lips’ petition for a writ of
habeas corpus and (2) ordered that William M. Lips be
retried within 120 days.
OPINIONS BELOW
On September 1, 1984, at Hahn Air Force Base, Ger-
many, William M. Lips was convicted by a general court-
martial of rape in violation of Article 120, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. Sec. 920 (1988);
forcible sodomy in violation of Article 125, Uniform
Code of Military Justice, 10 U.S.C. Sec. 925 (1988);
and aggravated assault (three counts) in violation of
Article 128, Uniform Code of Military Justice, 10 U.S.C.
Sec. 920 (1988). He was sentenced to a dishonorable
discharge, 20 years’ confinement, total forfeiture of pay
and allowances, and reduction to the rank of airman
basic. On direct appeal, the United States Air Force
Court of Military Review affirmed Lips’ conviction and
sentence on May 2, 1986. United States v. Lips, 22 M.J.
679 (AFCMR 1986). The decision appears in the Ap-
pendix at 21a. The United States Court of Military Ap-
peals denied discretionary review on March 2, 1987.
United States v. Lips, 24 M.J. 45 (CMA 1987). The
denial appears in the Appendix at 20a. On April 17,
1987, the United States Court of Military Appeals also
denied William M. Lips’ petition for reconsideration.
United States v. Lips, 24 M.J. 203 (1987). The denial
appears in the Appendix at 19a. On August 13, 1987.
the Judge Advocate General of the Air Force denied
William M. Lips’ motion for a new trial.
On October 27, 1988, while confined in the United
States Disciplinary Barracks at Leavenworth, Kansas,
2
William M. Lips filed a petition for a writ of habeas
corpus under 28 U.S.C. Sec. 2241 (1988) in the United
States District Court for the District of Kansas naming
the Commandant of the Disciplinary Barracks as_ the
defendant. In his petition for habeas corpus, William M.
Lips alleged (1) that the military judge improperly ad-
mitted certain sexually explicit materials at trial; and
(2) that the prosecutor violated his right against self-
incrimination by referring to his post-arrest silence dur-
ing cross-examination and in closing argument.
On July 31, 1992 the United States District Court for
‘the District of Kansas granted William M. Lips’ petition
for habeas corpus holding that the prosecutor’s repeated
comments on William M. Lips’ post-arrest silence resulted
in a violation of his constitutional rights under the Fifth
Amendment of the Constitution. Lips v. Commandant,
United States Disciplinary Barracks, F. Supp.
(D.C.K. # 88-3396, July 31, 1992). The decision appears
in the Appendix at 9a.
On July 1, 1993, the Circuit Court of Appeals for the
Tenth Circuit reversed holding that the District Court
erred in granting habeas corpus relief on the grounds that
the petitioner’s constitutional rights were violated by im-
proper prosecutorial cross-examination and closing argu-
ment. Lips v. Commandant, United States Disciplinary
Barracks. F.2d (10th Cir. #92-3359, July 1,
1993). The decision appears in the Appendix at la.
JURISDICTION
The judgment of the United States Court of Appeals
for the Tenth Circuit was entered on July 1, 1993. Jur-
isdiction of this Court is invoked under 28 U.S.C. Sec.
1254(1) (1988).
STATUTES INVOLVED
Article 120(a.), U.-C.M.J., 10 U.S.C. Sec. 920(a) (1988)
Rape and Carnal Knowledge
(a) Any person subject to this chapter who commits
an act of sexual intercourse with a female not his wife,
ee
3
by force and without her consent, is guilty of rape and
shall be punished by death or such other punishment as a
court-martial may direct.
Article 125, U.C.M.J., 10 U.S.C. Sec. 925 (1988)
Sodomy
(a) Any person subject to this chapter who engages in
unnatural carnal copulation with another person of the
same or opposite sex or with an animal is guilty of
sodomy. Penetration, however slight, is sufficient to com-
plete the offense.
(b) Any person found guilty of sodomy shall be pun-
ished as a court-martial may direct.
Article 128, U.C.M.J., 10 U.S.C. Sec. 928 (1988)
Assault
(a) Any person subject to this chapter who attempts
or offers with unlawful force or violence to do bodily
harm to another person, whether or not the attempt or
offer is consummated, is guilty of assault and shall be
punished as a court-martial may direct.
(b) Any person subject to this chapter who—
(1) commits an assault with a dangerous weapon or
other means of force likely to produce death or
grievous bodily harm; or
(2) commits an assault and intentionally inflicts
grievous bodily harm with or without a weapon;
is guilty of aggravated assault and shall be punished as
a court-martial may direct.
STATEMENT OF THE CASE
A. Facts
In June 1984, William M. Lips was a Senior Master
Sergeant (E-8) serving on active duty in the United
States Air Force and was assigned to the S0Oth Civil
Engineering Squadron at Hahn Air Base, Federal Re-
public of Germany. He had been stationed at Hahn Air
Base for over eight years and he and his wife lived off
post.
ee ee
A
of
On June 2, 1984, William M. Lins talked with Cynthia
Carite at the Foodland grocery store on post where she
was employed. In conversation he invited her to his home
for dinner on June 4, 1984. He also mentioned to Cyn-
thia Carite that his wife was out of the country at a
child care seminar in Texas. William M. Lips and
Cynthia Carite had known each other for some time and
she and her husband had been to Lips’ home and had
socialized with him and his wife previously.
At 5:30 on the evening of June 4, 1984, Cynthia
Carite arrived at William M. Lips’ home. Upon entering
the house, she removed her coat, took off her shoes, and
stood in front of the fireplace. William M. Lips testified
that he offered her a drink and that they watched part
of a Clint Eastwood movie he was preparing to tape.
He also showed her a .357 magnum pistol he had_ bor-
rowed from a friend which is like the one used in the
movie. In the kitchen Cynthia Carite picked up a copy
of Penthouse Variations and began to page through it.
She read aloud from one of the articles. She giggled and
they began to talk about “kinky sex.” (R. 897).
While dinner was cooking they returned to the living
room. Cynthia Carite complained about her low-paying
job. Lips commented jokingly, “I know where you can
get a part-time job that pays a hundred dollars an hour
. . Pll take the first twenty minutes.” Cynthia Carite
laughed and said, “I’ve been told !'m sitting on a gold
mine.” (R. 899-900). Cynthia Carite then stood up.
undressed herself, and walked over to William M. Lips.
William M. Lips testified that it was Cynthia Carite who
initiated this activity and the sexual relations that fol-
lowed. They discussed “kinky sex” further and partici-
pated in some bondage sex.
They dressed and then returned to preparing dinner.
While the steaks were cooking in the fireplace she fixed
herself another drink and teased him about tying lousy
knots. After dinner. they watched a film for twenty or
thirty minutes and then went upstairs where they engaged
in further sexual activity. When they finished, Cynthia
5
Carite asked William M. Lips if he had enjoyed himself
and if he knew of anyone who was “a senior NCO. . .
mature . . . not young, [who] had money, [and] who
would be willing to pay for this?” The clear inference is
that she was willing to prostitute herself. William M.
Lips said he would inquire.
Before leaving at about 9:30, Cynthia Carite kissed
William M. Lips and said, “How abe ‘t something for the
gold mine . . . to keep it open?” William M. Lips gave
her $60 in cash. She responded that she thought she
was worth $200, or his wife would find out. William M.
Lips said he would meet her outside the Base Exchange
at 10:00 the next morning with the rest of the money.
Cynthia Carite threatened to ruin his career if he didn’t
and she warned him not to cross her. The next day at
10:00 he looked for her at the Base Exchange and later
at Foodland, but he could not find her. He returned to
work and was informed that Air Force Office of Special
Investigation (OSI) agents were looking for him.
Cynthia Carite’s story is considerably different. Ac-
cording to Cynthia Carite, soon after she arrived, William
M. Lips. threatened her with a knife, pointed a gun at
her, and forced her to perform “kinky sex.” After dinner
She and William M. Lips went upstairs and engaged in
further sexual conduct. She was in fear of her life. The
next day she discussed the evening with the man she was
living with and later reported William M. Lips to the
authorities. William M. Lips was arrested the same day,
read his rights, and on the advice of defense counsel,
made no statement to the authorities.
B. General Court-Martial
On September 1, 1984, Senior Master Sergeant Wil-
liam M. Lips was tried by general court-martial at Hahn
Air Force Base, Germany, on charges of rape in viola-
tion of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. Sec. 920 (1988); forcible sodomy
in violation of Article 125, UCMJ, 10 U.S.C. Sec. 925
(1988); and aggravated assault (three-counts) in viola-
a
6
tion of Article 128, UCMJ, 10 U.S.C. Sec. 928 (1988).
He was convicted of the offenses and sentenced to a dis-
honorable discharge, 20 year’s confinement, total for-
feiture of pay and allowances, and reduction to the rank
of airman basic.
At trial the defense counsel called Senior Master Ser-
geant William M. Lips as a witness to testify. At the
beginning of his examination, the defense counsel asked
Sergeant Lips the following two questions:
Q. Senior Master Sergeant Lips, is this the first state-
ment that you have made, the first statement pub-
licly to government officials?
A. Yes, Sir.
Q. Why is that?
A. The day I was apprehended, or late that evening,
about eleven o’clock, I talked with Captain
Hallett-Weller, the [Assigned Defense Counsel],
on the telephone. She advised me not to make
any statements to anyone under any circum-
stances about what had occurred in my apart-
ment on the 4th of June... .’
In response to additional questions asked by defense
counsel, William M. Lips testified that Cynthia Carite
came to his home while his wife was away, had sexual
relations with him, had dinner with him, had sexual in-
tercourse with him after dinner, and then asked him for
money in return for not telling his wife about what
occurred.
1 (R. 838). These two questions asked by the defense counsel are
improper and should have been objected to by the prosecutor. In
the absence of an objection from the prosecutor, the military judge
should have admonished counsel. Mil. R. Evid. 512(a)(1) of the
Manual for Courts-Martial specifically prohibits either trial or de-
fense counsel from referring to the defendant’s post-arrest silence.
Mil. R. Evid. 512(a) (1), MCM, 1984 at III-31. See also Morgan
v. Hall, 569 F.2d 1161, 1168 (1st Cir.), cert. denied, 407 U.S. 910
(1978) (although defense counsel first raised the matter of defend-
ant’s post-arrest silence, the prosecution improperly used the silence
to undermine the accused’s testimony).
|
7
On cross-examination the prosecutor asked Sergeant
Lips the following questions: ,
Q.
O >
>
OP
Is there any part of it that I’ve mentioned to you
that you have not had for weeks before you
cla]me in here for first time and tfold] your
story about this?
This is not the first time I’ve told my story about
this, sir.
We've been through that, Sergeant Lips. I asked
you a simple question. This is, in fact, the first
time you’ve told your story to anyone who is not
required to keep from disclosing it?
Before you came in this courtroom and told your
story to anybody that had anything to do with
the prosecution of this case, any official con-
cerned with it for that matter who was not re-
quired to keep what you told them quiet, before
that happened, you had every bit of material I’ve
talked about here and you [had] it for weeks, did
you not?
Yes, Sir.
And you have measured your account of this
against that material and waited until this time to
tell it, correct?
I have not measured my account against that ma-
terial, no, sir.
You have waited until this time—
I have examined all that material, yes, sir.
—and you have waited until this time to provide
this account, correct?
I didn’t have any other opportunity to provide
this account, sir.
I didn’t ask you that, Sergeant Lips. We went
through that again. Do you want to do it again?
You don’t think the OSI would have talked to
you? You don’t think I would have talked to
you? You don't think Captain Basten would
8
have talked to you? You don’t think the security
police would have talked to you?
A. Objection, Your Honor.
Q. You know that what’s going on here is that you
have chosen not to talk about this for the reasons
that you told us because it was the advice of
counsel and because you thought it was in your
best interests. But you also know that if you
wanted to talk about it, you could have each and
every day. You could have talked to me [the
prosecutor]. You could have talked to Captain
Basten [the assistant prosecutor]. You could
have talked to the OSI [criminal investigators].
You could have talked to your commander. You
could have talked to any number of people.
(R. 1235-38). The trial judge did not halt this line of
questioning or give limiting instructions to the jury.
In closing argument the prosecutor stated that no evi-
dence of guilt could be inferred from the fact that Ser-
geant Lips waited until the trial to tell his story, but
then the prosecutor proceeded to comment extensively on
Lips’ post-arrest silence. how the victim had told her story
to the police immediately, but how the accused had said
nothing until the trial, and how Lips had time to fabri-
cate a story after hearing the evidence.
He’s getting the fruits of everything she says. He
can mull over and sort through what she’s had to
say about this, and he can turn and twist the story
in-between. More important than mulling over or
sorting through what she’s had to say about this, he
can mull over and sort through the other evidence,
things that have been found in his house, things that
have been found out about him. And he can try to
weave the lic between those things. He has the op-
portunity to do that for weeks and weeks, and weeks,
undistracted. Then he comes in this courtroom and
he sits down here and testifies. And in terms of try-
ing to find out whether or not he’s lying, there’s not
Scena
9
six Other stories that he’s told on six other occasions
to measure it against... .
(R. 1700).
But what happened is, this guy sat here and he
told a story on Saturday. Nobody’s ever heard it
before. Nobody’s ever had a chance to study, think,
and figure out how to take him apart. And nobody
knows what his answers to the on and on and on
questions will be. So I stand up here and jerk him
around, trying him out. And you all see the product.
Now, again, contrast that with the situation that the
girl was in. Her story’s been told from the Sth of
June, on.
(R. 1708). The defense counsel did not object to the
prosecutor's improper references to Sergeant Lips’ post-
arrest silence; nor did the military judge instruct the
jurors that such references to Sergeant Lips’ post-arrest
silence were improper and that no inference of guilt
should be drawn from them.
At Sergeant Lips’ trial, the prosecutor also introduced
into evidence a 65-minute pornographic video tape and
four sadomasochistic magazines which were shown to the
jurors. Sergeant Lips objected to the introduction of the
magazines and the video tape on the grounds that the
items were admitted in violation of Military Rules of Evi-
dence 403 and 404(b).° After reviewing the magazines
and video tape, the military judge admitted the items in
evidence and showed the 65-minute pornographic video
tape in its entirety to the jury and showed the magazines
to the jurors.
C. United States Air Force Court of Military Review
Senior Master Sergeant William M. Lins appealed his
court-martial conviction to the United States Air Force
Court of Military Review. In his brief, Senior Master
Sergeant William M. Lips argued that the prosecutor’s
2 United States v. Bisweil, 700 F.2d 1310, 1316 (10th Cir. 1983)
(probable value of prior acts substantially outweighed by danger
of unfair prejudice under Rule 403).
10
improper comments on Lips’ post-arrest silence during |
cross-examination and closing argument was unconstitu- |
tional under Doyle v. Ohio, 426 U.S. 610 (1976).®
The three military officers serving on the United States
Air Force Court of Military Review rejected Lips con-
stitutional challenge to the prosecutor’s comments in three
sentences. United States v. Lips, 22 M.J. 679, 883
(1986). See App. at 28a. In addressing the Doyle issue,
the Air Force Court of Military Review never discussed
Lips’ contention that the prosecutor impermissibly com-
mented on _ Lips’ post-arrest silence during cross-
examination.
In the Air Force Court of Military Review, Senior
Master Sergeant Lips also challenged the admissibility of
3In his brief to the Air Force Court of Military Review Senior
Master Sergeant Lips argued as follows:
Appellant’s trial included approximately two weeks of evi-
dence taking and witnesses. During trial counsel’s cross-
examination of appellant, appellant was questioned extensively
as to when he first talked to anyone concerning the alleged
incident and in particular, why he chose not to talk to anyone
other than his counsel prior to trial, (in fact, trial counsel’s
phraseology consistently utilized the attorney-client privilege to
indicate that the appellant’s version of the incident was some-
how improperly withheld until trial.) (R. 1235-42) The ap-
parent purposes of this line of questioning were twofold on the
part of trial counsel. First, he was seeking to establish a nega-
tive inference which he later vigorously argued to the members,
from the fact that appellant had remained silent prior to trial.
Secondly, trial counsel was on a fishing expedition for any
matter protected by the attorney-client privilege that he could
get the appellant to divulge on cross-examination.
Appellant’s Brief submitted to the Air Force Court of Military
Review (emphasis added). In addition, William M. Lips argued in
his brief to the Air Force Court of Military Review that:
“('t|hrough cross-examination, and again several times during
his argument on findings, trial counsel relied on a theory that
commenting upon a failure of appellant to speak up prior to
his trial is appropriate to impeach appellant, a theory unsup-
ported by law. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49
L.Ed.2d 91 (1976).”
Id. (emphasis added).
<<<
11
the pornographic 65-minute video tape and the sexually
explicit magazines under Military Rules of Evidence 403
and 404(b).* The Court concluded that the evidence
was properly admitted to establish Lips’ “motive, intent,
plan and design,” and that the “trial judge was within
the broad discretion given him to admit the challenged
evidence.” ° The Air Force Court also concluded the
“photographs and the video tape depicted scenarios for
non-consensual sex.” °
D. United States Court of Military Appeals
The United States Court of Military Appeals denied
discretionary review on March 2, 1987. App. at 20a. On
April 17, 1987, the United States Court of Military Ap-
peals also denied William M. Lips’ petition for reconsid-
eration. App. at 19a. And on August 13, 1987, the Judge
Advocate General of the Air Force denied William M.
Lips’ motion for a new trial.
E. United States District Court
On October 27, 1988, while confined in the United
States Disciplinary Barracks at Leavenworth, Kansas,
William M. Lips filed a petition for a writ of habeas
corpus under 28 U.S.C. Sec. 2241 (1988) in the United
States District Court for the District of Kansas naming
the Commandant of the Disciplinary Barracks as the de-
fendant. In his petition for habeas corpus, William M.
Lips alleged (1) that the military judge improperly ad-
4 Military Rules of Evidence 403 and 404(b) are identical to
Federal Rules of Evidence 403 and 404(b).
5 United States v. Lips, 22 M.J. 679, 682-83 (AFCMR 1986).
App. at 25a and 27a.
® Jd. at 682. App. at 26a. The trial judge admitted the evidence
at trial even though he recognized that the type of activity revealed
in the video tape “would always purport to demonstrate consensual
conduct, not forcible conduct on an unwilling victim.” (R. 212). The
Air Force Court of Military Review thus inaccurately and incor-
rectly. states that the “photographs and the video tape depicted
scenarios for non-consensual sex.” Id.
. call
12
mitted certain sexually explicit materials at trial; and (2)
that the prosecutor violated his right against self-
incrimination by referring to his post-arrest silence dur-
ing cross-examination and in closing argument.
On July 31, 1992 the United States District Court for
the District of Kansas granted William M. Lips’ petition
for habeas corpus holding that the prosecutor’s repeated
comments on William M. Lips’ post-arrest silence resulted
in a violation of his constitutional rights under the Fifth
Amendment of the Constitution. Lips v. Commandant,
United States Disciplinary Barracks, F. Supp.
(D.C.K. #88-3396, July 31, 1992). App. at 9a. The
District Court denied William M. Lips’ second conten-
tion that 65-minute pornographic video tape and 4 sex-
ually explicit magazines were improperly admitted into
evidence in violation of Military Rules of Evidence
404(b) and 403. The District Court concluded that the
“trial judge admitted the evidence to show motive, intent,
plan, and design” and that Sergeant Lips “failed to show
that the trial judge’s ruling resulted in a fundamentally
unfair trial.” App. at Ila.
In considering William M. Lips’ petition for habeas
corpus, the District Court acknowledged that “its review
of a claim made in a military habeas corpus petition is
- limited.” Jd. The District Court also applied the four-
part test set forth by the Tenth Circuit Court of Appeals
in Dodson v. Zelez. 917 F.2d 1250, 1252-53 (10th Cir.
1990), for reviewing petitions for habeas corpus from
military servicemen. See App. at 5a and infra at 15. In
applying the four-part test, the District Court concluded
(1) “that the asserted error, impermissible comment on
petitioner’s post-arrest silence, is of substantial constitu-
tional dimension”; (2) that “the issue before the court is
clearly one of law rather than a fact question previously
determined by the military tribunal”; (3) that there are
“no unique military considerations which apply to this
issue”; and (4) that “the issue was raised before the mili-
tary courts of review,” but was summarily dismissed on
a :
13
the grounds of “waiver for lack of contemporaneous ob-
jection.” App. at 12a.
Having decided that William M. Lips’ “ciaim meets the
requirements for review,” the District Court considered
the issue of whether prosecutor’s repeated comments on
Lips’ post-arrest silence violated his Fifth Amendment
rights under the Constitution. 7d. The District Court re-
viewed the transcript and found it “reveals numerous occa-
sions during cross-examination where the prosecutor re-
peatedly referred to petitioner’s failure to ‘tell anyone his
story until now.’”‘ In addition, the District Court notes
the existence of “other exchanges throughout the tran-
script where direct comment was made [by the prosecutor]
concerning petitioner’s post-arrest silence.” Jd.
Based on the record, the District Court “concludes that
the manifest intent of the prosecutor was to comment on
the petitioner’s post-arrest silence and, thus, attack his
credibility” and that “the natural and necessary impact is
that the jury would draw the conclusion that the com-
ments and questions concerned petitioner’s right to remain
Silent.” /d.
The District Court notes that defense counsel objected
at least once in response to the prosecutor’s questions.
The District Court found, however, that “even if the [Air
Force Court of Military Review] did not find [the objec-
tion sufficient to preserve the issue], under plain error
analysis, the continuous and repeated comment on peti-
tioner’s post-arrest silence was ‘obvious and _ substantial
error that affected the fairness, integrity or public reputa-
tion of the judicial proceedings.’” App. at 17a.
The District Court concludes that the “prosecutor’s re-
peated comments on petitioner’s post-arrest silence re-
sulted in a violation of [petitioner’s] constitutional rights
guaranteed under the Fifth Amendment.” App. at 17a-
18a. For this reason, the District Court ruled that “peti-
7 App. at 10a. See App. at 13a-14a for examples of the prosecu-
tor’s comments on cross-examination.
14
tioner did not receive a fair trial” and granted petitioner’s
writ of habeas corpus. /d.
F. Court of Appeals for the Tenth Circuit
The United States appealed the District Court’s deci-
sion to the Tenth Circuit Court of Appeals. On July /,
1993, the Tenth Circuit Court of Appeals reversed hold-
ing that the District Court (1) erred in considering peti-
tione1’s contention that he was denied a fair trial because
sexually explicit evidence was improperly admitted at his
court-martial, and (2) erred in granting habeas corpus
relief on the grounds that the petitioner’s constitutional
rights were violated by the prosecutor’s improper cross-
examination and closing argument.
In its decision the Tenth Circuit Court of Appeals con-
cluded “that although the federal district court had juris-
diction to entertain Lips’ petition, its scope of review was
. . . limited to determining whether” the military courts
gave full and fair consideration to the issues Lips raised
in his federal habeas corpus petition. App. at 4a. If the
issues “were given full and fair consideration by the mili-
tary courts,” the Court of Appeals notes, “the district
court should have denied the petition.” /d.
After revicwing the record of trial, the Court of Ap-
peals concluded that the military courts did give “full and
fair consideration” to the constitutional issues Lips raised
in his federal habeas corpus petition. App. at 4a, 6a. Be-
cause the constitutional issues raised by Lips were fully
and fairly considered oy the Air Force Court of Military
Review, the Court of Appeals reversed the District Court's
decision granting the writ of habeas corpus and remanded
the case “to the district court with directions to deny the
petition.” App. at 4a.
In reversing the District Court’s decision, the Tenth
Circuit Court of Appeals notes that the scope of review
applied by federal courts in reviewing habeas corpus feti-
tions from military personnel is narrower than that ap
plied in reviewing civil cases. App. at 5a. Thus, accord-
——ae eee
15
ing to the Tenth Circuit Court of Appeals, the “function
of the civil courts” in reviewing military habeas corpus
petitions is limited to determining whether the claims
raised by a military service member have been given full
and fair consideration by the military courts. App. at 6a.
Consistent with this view, the Tenth Circuit Court of
Appeals outlined in Dodson v. Zelez, 917 F.2d 1250 (10th
Cir. 1990), a four-part test for federal courts to use in
determining if a constitutional issue in a military habeas
corpus petition has been fully and fairly considered bv a
military court.
|R leview by a federal district court of a military con-
viction is appropriate only if the following four con-
ditions are met: (1) the asserted error is of sub-
stantial constitutional dimension; (2) the issue is one
of law rather than of disputed fact already deter-
mined by the military tribunal; (3) there are no
military considerations that warrant different treat-
ment of constitutional claims; and (4) the military
courts failed to give adequate consideration to the
issues involved or failed to apply proper legal
standards.
App. at 5a-6a. The District Court applied this four-part
test and held “the military failed to give adequate con-
sideration to Lips’ contention” that his Fifth Amend-
ment rights were violated by the comments made by the
prosecutor on Lips’ post-arrest silence in cross-examination
and during closing argument. App. at 6a. The District
Court, however, did not apply the four-part test in deny-
ing “Lips’ claim regarding the [improper] admission of
the sexually explicit materials.” /d.
The Tenth Circuit Court of Appeals, applying the
same standard, reaches a different result and concludes
“that the military courts [gave] the matters raised in
[Lips’] federal habeas corpus proceeding full and fair con-
sideration and that the district court erred in reviewing
these matters de novo.” App. at (7)a.
16
The Tenth Circuit states that Lips, in his brief to Air
Force Court of Military Review, sets forth as a separate
issue the prosecutor's improper comments made during
closing argument on Lips’ post-arrest silence. However,
the Tenth Circuit notes that Lips “did not set forth as a
separate issue [in his brief] the prosecutor’s cross-exami-
nation of Lips and [the Court further notes that Lips]
made only passing reference to improper cross-examina-
tion in his argument under ‘Issue V.’” ” *
With respect to the prosecutor's comments on closing
argument, the Tenth Circuit Court of Appeals concludes
that “the United States Air Force Court of Military Re-
view gave the issue of improper closing argument ‘full
and fair consideration, as required by Burns v. Wilson
., and also gave ‘adequate consideration’ to the issue
and applied ‘proper legal standards,’ as required by our
Dodson v. Zelez ...” App. at 7a. See App. at 28a. For
this reason, the Tenth Circuit concludes that “the district
court erred in granting habeas corpus relief based on im-
proper prosecutorial closing argument.” 7d.
With respect to the issue of the prosecutor’s improper
comments on Lips’ post-arrest silence during cross-
examination, the Tenth Circuit observes that “defense
counsel made only one nonspecific objection to this line
of questioning” and “did not raise the issue of improper
cross-examination on appeal to the United States Air
Force Cour! of Military Review.” /d. “Because defense
counse! did not make a timely and specific objection and
also dic not assert the issue of improper cross-examination
on appeal,” the Tenth Circuit concludes that “the matter
. was not raised in the military courts.” /d.
Finding nothing in the record indicating an “ ‘excuse’
for either of these procedural defaults,” the Tenth Circuit,
applying the “cause and prejudice” standard used in re-
viewing state and federal habeas cases, concludes that the
“ “cause and actual prejudice’ standard was not met,” and
held that “the claim of improper cross-examination will
8 See supra note 3 and accompanying text.
es
17
not be reviewed ‘on the merits’ in the present habeas
corpus proceeding.” App. at 8a. ;
In the alternative, the Tenth Circuit Court of Appeals
States that the Air Force Court of Military Appeals fully
and fairly considered the issue of prosecutor’s references
to Lips’ post-arrest silence in cross-examination, even
though the court issued no opinion on the issue, and that
the District Court committed error in ruling on the issue.
Even assuming that counsel’s objection at trial to
the prosecutor’s cross-examination was adequate and
further assuming that the matter of improper cross-
examination was presented to the United States Air
Force Court of Military Review, the fact that the
court did not specifically address the question of
improper cross-exXamination in its Opinion is not
controlling.
App. at 8a n.2. The Tenth Circuit Court of Appeals notes
that the absence of a discussion in the Air Force Court
of Military Review’s opinion concerning the prosecutor’s
references in cross-examination to Lips’ post-arrest silence
is not critical because the Air Force Court of Military
Review states at the end of its opinion that it has “ ‘ex-
amined the remaining assignments of error and resolved
them against the appellant.’ ” /d.
The practice of allowing military courts to decide con-
Stiutional issues summarily, the Tenth Circuit Court of
Appeals notes, was approved by it in Watson v. McCot-
ter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476
U.S. 1184 (1986).
When an issue is briefed and argued before a military
board of review, we have held that the military tri-
bunal has given the ciaim fair consideration, even
though its opinion summarily disposed of the issue
with the mere statement that it did not find the issue
meritorious or requiring discussion. 782 F.2d at
145.
App. at 8a n.2. In short, the Tenth Circuit Court of
Appeals concludes that because the Fifth Amendment
18
issue concerning the prosecutor's comments on Lips’ post-
arrest silence during cross-examination was briefed and
argued before the Air Force Court of Military Review, it
was fully and fairly considered by the military court even
though the issue was summarily disposed of with the
Statement: “We have examined the remaining assigned er-
rors and resolve them against the appellant.” App. at 30a.
REASONS FOR GRANTING THE WRIT OF CERTIORARI
The Supreme Court of the United States should
GRANT * the petition for a writ of certiorari in the pres-
ent case for three reasons: First, the decision of the
United States Court of Appeals for the Tenth Circuit is in
conflict with decisions of the First, Third, Fourth, Fifth,
Eighth, Ninth, District of Columbia, and Federal Circuit
Courts of Appeal on the issue of the scope of federal
court review of military habeas corpus petitions; Sec-
ond, the decision of the Court of Appeals for the Tenth
Circuit dramatically restricts the scope of federal court
review of constitutional issues raised in military habeas
corpus petitions; and Third, the decisions of the Court
of Appeals for the Tenth Circuit and the Air Force Court
of Military Review uphoiding prosecutorial comment on
a defendant’s post-arrest silence and the government’s use
of specific intent evidence, /.e., plan, intent, motive, and
design, introduced under Rule 404b and 403, to prove
general intent crimes are contrary to decisions of the
Supreme Court and Court of Appeals for the Fourth
Circuit.
I. CONFLICT IN THE CIRCUITS ON THE SCOPE
OF FEDERAL COURT REVIEW OF MILITARY
HABEAS CORPUS PETITIONS
The first reason the Supreme Court should grant the
petition for a writ of certiorari in the present case is be-
®In the alternative, the Supreme Court may want to HOLD this
petition for the Court’s decision in Weiss v. United States, 36 M.J.
224 (CMA 1992), cert. granted, ——- U.S. ——— (No. 92-1492, May
24, 1993) invoking the Appointments Clause and terms-of-office for
military judges and Court of Military Review judges.
19
cause the decision of the Court of Appeals for the Tenth
Circuit is in conflict with decisions of the Courts of Ap-
peals for the First, Third, Fourth, Fifth, Eighth, Ninth,
District of Columbia, and Federal Circuits on the issue of
the scope of federal review of military habeas corpus
petitions.
After World War II and at the end of Korean War
the Supreme Court of the United States decided Burns v.
Wilson, 346 U.S. 137, rehearing denied, 346 U.S. 844
(1953). In Burns, the Supreme Court broadened the
power of the federal courts to review military cases be-
cause of the great number of American citizens who were
serving or had served in the armed forces.”
In affirming the judgment of the Circuit Court of Ap-
peals for the District of Columbia to deny petitions for
habeas corpus submitted to the Court from service mem-
10T suppose it cannot be said that the courts of today are more
knowledgeable about the requirements of military discipline
than the courts in the early days of the Republic. Nevertheless,
events quite unrelated to the expertise of the judiciary have
required a modification in the traditional theory of the auto-
nomy of military authority.
These events can be expressed very simply in numerical
terms. A few months after Washington’s first inauguration,
our army numbered a mere 672 of the 840 authorized by Con-
gress. Today, in dramatic contrast, the situation is this: Our
armed forces number two and a half million; every resident
male is a potential member of the peacetime armed forces; such
service may occupy a minimum of four per cent of the adult
life of the average American male reaching draft age; reserve
obligations extend over ten per cent of such a person’s life;
and veterans are numbered in excess of twenty-two and a half
million. When the authority of the military has such a sweep-
ing capacity for affecting the lives of our citizenry, the wisdom
of treating the military establishment as an enclave beyond the
reach of the civilian courts almost inevitably is drawn into
question.
Warren, The Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181,
107-88 (1982). See J. BisHop, Jr., JusTICE UNDER FIRE: A STUDY
OF MILITARY LAW 122-33 (New York: Charterhouse, Inc., 1974).
20
bers, Chief Justice Vinson in a plurality opinion,” states
that “it is the limited function of the civil courts to deter-
mine whether the military have given fair consideration
to each of [the accused’s] claims” and “when a military
decision has dealt fully and fairly with an allegation
raised in [the accused’s] application, it is not open to a
federal civil court to grant the writ simply to re-evaluate
the evidence.” ”
The standard that has evolved is that Article III courts
can review court-martial judgments on two grounds: the
first ground is that a court-martial judgment is void be-
cause the court lacked jurisdiction, and the second ground
is that the court-martial is defective or procedurally unfair
in some fundamental way.’*
Since Burns, the Circuit Courts of Appeal have dis-
agreed over what the proper scope of federal court review
of military habeas corpus petitions should be.’* Some
courts have viewed the decision in Burns v. Wilson,’ as
expanding “the scope of review slightly, or, at least, to
1
11 Chief Justice Vinson’s opinion was joined by Justice Reed,
Justice Burton, and Justice Clark. Justice Jackson concurred in
the result. Justice Minton concurred in affirming the judgment.
Justice Frankfurter thought the case should be reargued. And
Justice Douglas’ dissenting opinion was joined by Justice Black.
12 346 U.S. at 144 and 142.
13 Schlesinger v. Councilman, 420 U.S. 738, 747 (1975).
14 Calley v. Callaway, 519 F.2d 184, 198-99 n.20 (5th Cir. 1975),
cert. denied sub nom., Calley v. Hoffman, 425 U.S. 911 (1976).
See Rich, Federal Court Scope of Review Over Military Habeas
Corpus Cases, 6 MEMPHIs ST. U.L. REV. 83 (1975). See also Bishop,
Jr., Civilian Judges and Military Justice: Collateral Review of
Court-Martial Convictions, 81 CoLUM. L. REV. 40, 70 (1981);
Weckstein, Federal Court Review of Courts-Martial Proceedings:
A Delicate Balance of Individual Rights and Military Responsibili-
ties, 54 MIL. L. REV. 1, 28-54, 74-81 (1971) ; Burris & Jones, Civilian
Courts and Courts-Martial—the Civilian Attorney’s Perspective,
10 AM. CRIM. L. REV. 139 (1971); J. BisHop, Jr., JUSTICE UNDER
FIRE: A STUDY OF MILITARY LAW 135-36 (New York: Charter-
house, Inc., 1974); Katz & Nelson, The Need for Clarification in
Military Habeas Corpus, 27 OHIO ST. L.J. 198 (1966).
15 346 U.S. 137, rehearing denied, 346 U.S. 844 (1953).
———
iain
21
have shifted the emphasis from mere ‘jurisdiction’ and
‘power, as the proper subjects for civilian court review,
to broader considerations of the ‘fullness’ and ‘fundamen-
tal fairness’ of the court-martial proceedings.” ** Other
courts have developed their own interpretations of the
“full and fairness” standard.*' The standard adopted by
16 De Coster v. Madigan, 223 F.2d 906, 909 (7th Cir. 1955), com-
panion case rev’d., Jackson v. Taylor, 353 U.S. 569, 571 (1957). See
Jackson v. Taylor, 353 U.S. 569, 572 n.2 (1957).
17 See First Circuit: Allen v. VanCantfort, 436 F.2d 625, 629
n.8 (1st Cir.), cert. denied, 402 U.S. 1008 (1971) (ineffective assist-
ance of counsel reviewed even though the issue was fully considered
by the military appellate courts) ;
Third Circuit: White v. Humphrey, 212 F.2d 508 (3rd Cir.), cert.
denied, 348 U.S. 900 (1954) (full and fair consideration standard
ignored and denial of constitutional due process issue reviewed) ;
Fourth Circuit: Kasey v. Goodwyn, 291 F.2d 174, 178 (4th Cir.
1961), cert. denied, 368 U.S. 959 (1962) (denial of constitutional
due process issue summarily considered and denied) ;
Fifth Circuit: Calley v. Callaway, 519 F.2d 184, 228 (5th Cir.
1975), cert. denied sub nom., Calley v. Hoffman, 425 U.S. 911 (1976)
(extensive review of constitutional issues even though most of the
constitutional issues were fully and fairly considered by the military
appellate courts) ;
Ninth Circuit: Daigle v. Warner, 348 F. Supp. 1074, 1078 (D.C.
Hawaii 1972), rev’d on other grounds, 490 F.2d 358 (9th Cir. 1973)
(full and fair consideration standard “has been subject to different
interpretations, [but] the underlying rationale is that review on
(military habeas corpus petitions| should be afforded when the peti-
tioner has allegedly been denied a basic constitutional right, the
absence of which materially affected his rights to a fair hearing) ;
Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.), cert.
denied, 454 U.S. 864 (1981) (Burns plurality does not preclude civil
court consideration of the constitutional defects alleged here where
it is not clear the issue was fully and fairly considered because no
military court articulated an analysis of them) ;
District of Columbia Circuit: Kauffman v. Secretary of the Air
Force, 415 F.2d 991 (DCC 1969), cert. denied, 396 U.S. 1013 (1970)
(rejecting government’s contention that civilian court review of
alleged constitutional errors in court-martial proceeding is precluded
where military courts have fully and fairly considered the constitu-
tional issues) ; Avrech v. Secretary of the Navy, 520 F.2d 100 (DCC
1975), cert. denied, 425 U.S. 970 (1976) (constitutional issues
22
the Tenth Circuit Court of Appeals in the present case—
that once an issue is briefed and argued before a military
court, it is considered to be fully and fairly considered by
the military courts and cannot be reviewed by a District
Court if the issue is raised in a military habeas corpus
petition—is one of the narrowest interpretations of the
“full and fair” consideration standard."*
In short, different standards of review are being used
in the various Circuit Courts of Appeals to review con-
Stitutional issues raised in military habeas corpus peti-
tions. Service members, in other words, who raise a con-
stitutional issue in a petition for habeas corpus filed with a
District Court, are not having their petitions reviewed
uniformly by courts throughout the country. For these
reasons, Counsel for Petitioner respectfully requests the
Court GRANT the petition for a writ of certiorari in the
present case to ensure that all service members who file
petitions for writs of habeas corpus in the federal courts
receive uniform consideration of the constitutional issues
raised in their petitions.
II. ELIMINATION OF FEDERAL COURT REVIEW OF
MILITARY COURT DECISIONS IN THE TENTH
CIRCUIT
The second reason the Supreme Court should GRANT
the petition for a writ of certiorari in the present case is
because the decision of the Court of Appeals for the
raised by service members in military courts are reviewable by
federal courts) ;
Federal Circuit: Shaw v. United States, 357 F.2d 949, 953 (Ct. Cl.
1966) (court of claims will review constitutional issues raised by
service members even though the issues have been reviewed by mili-
tary courts).
18 Lips v. Commandant, United States Disciplinary Barracks,
F.2d —— (10th Cir. #92-3359, July 1, 1993) (Article III judge’s
finding that prosecutor’s continuous and repeated comments on
service member’s post-arrest silence was an “obvious and substantial
error that affected the fairness, integrity, or public reputation of
judicial proceedings” reversed where military court fully and fairly
considered the issue and denied it summarily without opinion).
23
Tenth Circuit so restricts federal court review of constitu-
tional issues raised in military habeas corpus petitions that
the right of a service member to file a petition for habeas
corpus in the Tenth Circuit is rendered meaningless.
The Tenth Circuit Court of Appeals’ interprets the
standard announced by the Supreme Court in Burns to
mean that once a constitutional issue is briefed and ar-
gued in a military court, there is an unrebuttable pre-
sumption that the issue has been fully and fairly con-
sidered by the military court irrespective of whether the
military court writes an opinion on the issue or disposes
of it summarily.
In Dodson vy. Zelez, 917 F.2d 1250, 1252-53 (10th
Cir. 1990), the Tenth Circuit Court of Appeals outlined
a four-part test for determining when federal court review
of a military conviction on habeas corpus is appropriate.”
Part four of the test states that a military court must give
the issue adequate consideration and apply proper legal
standards in reviewing it before the issue can be reviewed
by a District Court in a military habeas corpus petition.
In other words, a District Court in the Tenth Circuit can-
not consider a constitutional issue raised in a military
habeas corpus petition unless (1) the issue has been
briefed and argued before a military court, (2) the mill-
tary court has given the issue adequate consideration, and
(3) the military court has applied proper legal standards
in reviewing it.
The analytical problem presented is that if the consti-
tutional issue is briefed and argued before a military court,
and is addressed by the military court in either an opin-
ion or is disposed of summarily, the Tenth Circuit con-
siders that the issue has been fully and fairly considered
by the military courts and therefore cannot be reviewed
by a District Court if the issue is raised in a military
habeas corpus petition.
In effect, the Tenth Circuit Court of Appeals has elim-
inated federal court review of military court decisions in
19 See supra at 15.
La aa
24
the Tenth Circuit and has denied the writ of habeas
corpus to service members who believe their constitutional
rights have been violated by the military justice system.
If a service member is required to brief and argue a
constitutional issue in a military court before the issue
can be reviewed by a District Court in a petition for
habeas corpus, and if every issue briefed and argued be-
fore a military court is deemed by the Tenth Circuit
Court of Appeals to be fully and fairly considered by the
military court, even if it is dismissed summarily, then no
federal district court will ever be able to review a petition
from a military court in the Tenth Circuit because every
issue will be fully and fairly considered by the military
courts and hence not subject to federal court review.
The Tenth Circuit Court of Appeals’ application of
the Burns full and fair consideration standard is so re-
Strictive that it virtually eliminates federal court review of
military court decisions in the Tenth Circuit and renders
the right of service members to habeas corpus relief in
the Tenth Circuit nonexistent.
The importance of denying effective habeas corpus re-
lief to active duty and reserve military personnel is im-
portant when one considers that over two million men and
women are serving in the armed forces of the United
States—all of whom are subject to the Uniform Code of
Military Justice and military criminal justice system. This
group is larger than the number of citizens subject to
criminal codes in the States of Alaska, Wyoming, Ver-
mont, Delaware, North Dakota, South Dakota. Montana,
Nevada. New Hampshire. Idaho. Rhode Island, Hawaii,
Maine. New Mexico, Utah, Nebraska, and West Vir-
ginia.””
The policy of denying access of young men and women
serving in the armed forces of the United States to
20In World War IJ, there were over 12,300,000 young men and
women who served in the armed forces and were subject to the
military justice system. Karlan & Pepper, The Scope of Military
Justice, 43 J. CRIM. L. CRIMINOLOGY & POLICE ScI. 285, 286 (1962).
25
federal courts and of discouraging them from raising le-
gitimate constitutional issues in petitions for habeas corpus
is not a policy that his Court should encourage. Not only
are these young citizens defending the Constitution and
willing to give up their lives for it if necessary, but also
they on occasion may need assistance from the federal ju-
diciary and the benefit of civilian review of a constitu-
tional issue.
In the present case petitioner William M. Lips, a career
serviceman. was convicted in 1984 by general court-
martial and received a 20-year sentence. To date the con-
stitutional violations he raised on appeal have been fully
and fairly considered only by military officers. A federal
district court judge in the Tenth Circuit did rule that Lips’
Fifth Amendment rights were violated in his trial, that
the constitutional violation amounted to plain error, and
that Lips should be retried. But the Tenth Circuit Court
of Appeals reversed that decision holding that military
officers had fully and fairly considered the constitutional
violations raised by Lips in his military habeas corpus
petition and that the federal district court judge erred in
considering his petition.
To avoid the kind of injustice William M. Lips has had
to suffer—no civilian review of his constitutional claims
and to ensure that all military personnel with legiti-
mate constitutional claims will have access to the federal
courts if the need arises, the Court should grant the
petition for a writ of certiorari in this case and estab-
lish rule for federal courts to follow in reviewing habeas
corpus petitions filed by service members.
Ill. THE MILITARY COURT APPLIED THE WRONG
LEGAL STANDARDS IN REVIEWING CONSTITU-
TIONAL ISSUES PRESENTED BY LIPS IN THE
APPEAL OF HIS COURT-MARTIAL CONVICTION
The third reason the Supreme Court should grant the
petition for a writ of certiorari in the present case is be-
cause the Air Force Court of Military Review applied
the wrong legal standards in deciding both the post-arrest
26
silence issue and the evidentiary due process issue raised
by Lips in the appeal of his court-martial conviction. On
the post-arrest silence issue and the 404b and 403 evi-
dentiary issues, the Tenth Circuit Court of Appeals con-
cludes that Lips’ constitutional cliams were fully and
fairly considered by military authorities and properly
denied.
A. Post-Arrest Silence Issue
The Air Force Court of Military Review devotes three
sentences in its opinion to the Doyle issue raised by
William M. Lips in the appeal of his court-martial con-
viction:
[Lips] also contends he is entitled to a new trial be-
cause of improper findings and sentencing arguments
by government counsel. [Lips’] counsel entered no
objection at trial to the new challenged statements
made during argument. In view of this, we consider
this issue to be waived on appeal in the absence of
plain error, which we find no basis here to invoke.
See supra 10 and at 2la. The military court concludes
that the Doyle issue was waived because no objection was
made during argument.
In United States v. Arnold, 425 F.2d 204 (10th Cir.
1970), however, the defense counsel did not present a
Doyle issue objection on closing argument until the case
was before the Tenth Circuit Court of Appeals. In ad-
dressing the issue and reversing the defendant’s conviction,
the Tenth Circuit states:
We are in complete agreement that the record re-
flects more than ample evidence to support convic-
tion and that the trial court correctly determined that
no claim of error presented to support the motion for
a new trial had merit. However, appellate counsel
presents an-additional assignment of error, made for
the first time in this court, that is so clearly meritor-
ious in view of our decision in United States v.
Nolan, 10 Cir., 418 F.2d 588, that we are compelled
to reverse the judgment regardless of the lateness of
presentation. . . . The error climaxes, as in Nolan,
27
with a prejudicial closing argument by the govern-
ment attorney.
Id. at 205. Despite its decision in Arnold, the Tenth
Circuit Court of Appeals concludes the military court
applied the correct legal standard in holding that Lips
waived his objection to the prosecutor’s prejudicial closing
argument. “We think,” the Tenth Circuit states, “the
United States Air Force Court of Military Review gave
the issue of improper argument ‘full and fair considera-
tion, as required by Burns v. Wilson, . . . and also gave
‘adequate consideration’ to the issue and applied ‘proper
legal standards.’” App. at 7a.
In its Lips opinion, the Tenth Circuit also states that:
In cross-examination, the prosecutor attempted to
show that the real reason Lips made no post-arrest
statements was that he desired to hear Cynthia
Carite’s testimony in court before giving anyone his
version of events so that he could “tailor” his testi-
mony and make it believable. Further, in closing
argument to the military jury, the prosecutor stated
that while Lips’ post-arrest silence was no evidence
of guilt, Lips had nonetheless waited until trial “to
tell his story,” so that he could first hear Cynthia
Carite’s testimony.
App. at 4a. In these two sentences, the Tenth Circuit
Court of Appeals correctly summarizes the intent of the
prosecutor in commenting on Lips’ post-arrest silence.
In Doyle v. United States, 426 U.S. 610 (1976) the
Supreme Court of the United States held that this line of
questioning and argument used by the prosecutor is
improper.
The State pleads necessity as justification for the
prosecutor’s action in these cases. It argues that the
discrepancy between an exculpatory story at trial and
silence at the time of arrest gives rise to an inference
that the story was fabricated somewhere along the
way, perhaps to fit within the seams of the State’s
case as it was developed at pretrial hearings... .
28
Despite the importance of cross-examination, we
have concluded that the Miranda decision compels
rejection of the State’s position.
Id. at 616-17. Despite the clearness of the holding in
Doyle, the Court of Appeals for the Tenth Circuit finds no
violation of Lips’ Fifth Amendment rights to a fair trial.
By concluding that the military court applied the cor-
rect legal standard in deciding the post-arrest silence
issues presented by Lips, and by approving the military
court’s decision on the issues, the Tenth Circuit erred.
B. Specific Intent Evidence Used to Prove General
Intent Offenses
With respect to the evidentiary issue and the introduc-
tion of sexually explicit materials at Lips’ court-martial.
the Air Force Court of Military Review states that the
pornographic video tape and four sexually explicit mag-
azines were introduced “to establish motive, intent, plan
and design” on the part of Lips. App. at 25a. On this
due process issue the District Court and the Tenth Circuit
Court of Appeals agree that the military court applied
the correct legal standard. All three courts agree, in
other words, that specific intent evidence, that is, evidence
of motive, intent, plan, and design admitted under Rule
404b, can be introduced by the government to prove a
general intent offense.”
21 See App. at 25a. Intent, motive, etc. are not issues in Lips’ case
because the offenses with which Lips is charged—rape, sodomy,
assault and battery—are general intent offenses, not specific intent
offenses. It is not clear why the government had to introduce the
sexually explicit evidence to establish intent, motive, etc. when Lips
is charged with general intent offenses. See United States v.
Soundingsides, 820 F.2d 1232 (10th Cir.), pet. for rehearing denied,
825 F.2d 1468 (1987) (per curiam) (evidence of other crimes,
wrongs or acts is inadmissible in a general intent case); Lovely
v. United States, 169 F.2d 386 (4th Cir. 1948), cert. denied, 338
U.S. 834 (1949), (evidence admitted to prove intent, motive, etc.
held inadmissible in general intent rape case where the only issue
is whether the sexual contact was consensual or nonconsensual).
29
However, this finding is contrary to the decision of the
Fourth Circuit Court of Appeals in Lovely v. United
States, 169 F.2d 386 (4th Cir. 1948), cert. denied, 338
U.S. 834 (1948). In Lovely, the Fourth Circuit held
that the introduction of specific intent evidence was error
in a general intent case where the outcome of the case
turns on the credibility of the witnesses as it does in Lips’
case. In Lovely, the defendant was charged with rape
and the trial court permitted the introduction of evidence
of a prior rape under similar circumstances to prove
motive, intent, plan, etc., on the part of the defendant.
In holding that the trial court erred in admitting testi-
mony about the “other rape,” the Fourth Circuit Court
of Appeals stated that “[t]here was no issue of identity in
the case, nor of knowledge, motive or intent, and the
crime was not the sort, like a stock swindling scheme or
murder for insurance, where the commission of other
crimes may tend to establish a plan from which the crime
charged can be said to have resulted.” J/d. at 388. In-
deed, the Court notes that the defendant admitted he was
with the victim in his car and that he had sexual relations
with her; thus, “the only question [in the case as in Lips’
case is} whether he had had carnal knowledge of her
forcibly and against her will.” /d.
The fact, if it was a fact, that he had ravished another
woman some weeks before, threw no light whatever
on that question. It showed merely that he was a
bad man, likely to commit that sort of crime; and
this is precisely what the prosecution is not allowed
to show in a criminal case.”
Like the trial court in Lovely, the military judge in Lips’
trial permitted the prosecutor to introduce specific intent
evidence to prove the same kind of general intent offense
tried in Lovely.
However, unlike the Fourth Circuit Court of Appeals,
the Air Force Court of Military Review approved the
prosecutor's introduction of specific intent evidence to
*2 Id. See United States v. Hickson, 22 M.J. 146, 150 (CMA
1986) (rape is a general intent offense).
30
prove the general intent offenses Lips was charged with
committing. The Tenth Circuit's holding that the mili-
tary court applied the correct legal standard in reviewing
Lips’ evidentiary due process issue thus is contrary to the
holding of the Fourth Circuit in Lovely.
In sum, the Air Force Court of Military Review applied
the wrong legal standards in reviewing the post-arrest silence
issue and in reviewing the introduction of specific intent
evidence under Ruie 404b, and the Tenth Circuit is wrong
in its conclusion that the Air Force Court “fully and
fairly” considered Lips’ constitutional claims. Because
the Tenth Circuit Court of Appeals held that Lips is not
entitled to civilian review on these issues, Lips has never
received a full and fair review of the constitutional issues
he raised on appeal from the court-martial conviction he
received in 1984.
CONCLUSION
Counsel for Petitioner respectfully requests that the
Supreme Court of the United States grant the petition for
a writ of certiorari in the present case (1) because the de-
cision of the Court of Appeals for the Tenth Circuit is
in conflict with decisions of numerous other Circuit
Courts of Appeals on the issue of the scope of federal
court review of military habeas corpus petitions; (2) be-
cause the decision of the Tenth Circuit Court of Appeals
virtually eliminates federal court review of military habeas
corpus petitions in the Tenth Circuit; and (3) because the
military court applied the wrong legal standards in review-
ing Lips’ constitutional claims and in doing so denied
him a fair trial.
Respectully submitted,
JAN HORBALY
5310 Renaissance Court
Burke, Virginia 22015
(703) 978-7909
Date: September 28, 1993 Counsel for Petitioner
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