Opposition Brief — Lips v. Commandant, United States Disciplinary Barracks

No. 93-503

In the Supreme Court of the Gnited States

OCTOBER TERM, 1993

WILLIAM M. LIPS, PETITIONER

v.

COMMANDANT, UNITED STATES DISCIPLINARY

BARRACKS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREw S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

THOMAS E. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

tt ——————————

| BEST AVAILABLE COPY fs

QUESTIONS PRESENTED

1. Whether petitioner was entitled to habeas corpus

relief on the ground that the prosecutor at petitioner’s

court-martial questioned him about his post-arrest

silence and commented on his post-arrest silence in

closing argument.

2. Whether petitioner was entitled to habeas corpus

relief on the ground that “other acts” evidence was

admitted at petitioner’s court-martial.

iin

TABLE OF CONTENTS

Page

Opinions below .............ccccceeeese ibe evusttbsdentedeeobensyesencssveneses te l

IN tit cxceseetninnevivsunatécesivevisonerssoosmmsoineccees..,.ce.... l

IE cahatetttdbinticscesssesssnectevecesiseeseneeeersseesecossescc,. 2

I arts tse bvarentasencniuxcocsrecterevecssvesexeeessesorecsess.....ce,..... 7

IE sta recdivnt inedatenereicomsacdedovivesecseeeeesersaoesess..c...c.,. 16

TABLE OF AUTHORITIES

Cases:

Allen v. VanCantfort, 436 F.2d 625 (Ist Cir.), cert.

denied, 402 U.S. 1008 (L971) cooccccccccccccceccecccecececeeccccc., i)

Burns v. Wilson, 346 U.S. 137 I ae dat s

Butler vy. McKellar, 494 U.S. 407 (1990) ........... 13

Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert.

denied, 425 U.S. 911 (1976) ooo. .cccccccccccccccecceceecescccecccc., 9,10, 11

Daigle v. Warner, 348 F. Supp. 1074 (D. Haw. 1972),

rev'd, 490 F.2d 358 (9th Cir. STI csttchbudtibdenitevmasneieesnenase 7)

Davis v. United States, 411 U.S. 233 (1973) ............... 12

Dodson v. Zelez, 917 F.2d 1250 (0th BE, TODO) orcceccenccre 9,10, 11

Doyle v. Ohio, 426 U.S. 610 (1976) .oocccccccccccccec-e 4,13

Estelle v. McGuire, 112 S. Ct. 475 (1991)... 14

Hatheway vy. Secretary of the Army, 641 F.2d 1376 (9th

Cir.), cert. denied, 454 U.S. 864 (1981) ........000..00.--0.... 10

Khan v. Hart, 943 F.2d 1261 (10th Cir. 1991)... 9, 10

Lebowitz vy. Wainwright, 670 F.2d 974 (11th Cir. 1982) .. 14

Lovely vy. United States, 169 F.2d 386 (4th Cir. 1948) .... 15

Mendrano v. Smith, 797 F.2d 1538 (10th Cir. 1986) ....... 1]

Monk v. Zelez, 901 F.2d 885 (10th Cir. SN la 8)

Saffle v. Parks, 494 U.S. 484 (1990) cocccccccccccccccccce--e 3

Shaw v. United States, 357 F.2d 949 (Ct. Cl. 1966) ....... i)

Solorio v. United States, 483 U.S. 425 DEED dacataetdvedines: s

United States vy. Arnold, 425 F.2d 204 (10th Cir. 1970) . 12

United States v. Frady, 456 U.S. 152 (1982) ................. 12, 13

United States v. Pino, 827 F.2d 1429 (10th Cir. 1987) ... 14

(III)

IV

Cases—Continued: Page

United States v. Robinson, 485 U.S. 25 (1988) ............... 14

Wainwright v. Sykes, 433 U.S. 72 (1977) .......000...0.-....... 12

Weiss v. United States, cert. granted, 113 S. Ct. 2412

CED COG, DIDI is vsiecdntcsccesesssosnsedcedinces cctavedssecenscete:. 7

Wolff v. United States, 737 F.2d 877 (10th Cir.), cert.

denied, 469 U.S. 1076 (1984) vooccccccccccccccccecceceeecececeeeeeen. 12

Constitution, statutes and rules:

U.S. Const. :

Art. II, § 2, Cl. 2 (Appointments Clause) ................... 7

NE diate tries teedet = 4, 6, 11, 12, 14

Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:

BOG, Wy BP AE Ais UW sesstwnesvtserecccnciersesensiasacseuecaescetons 8

Art. 120, 10 U.S.C. 980 ...ccccoceccscceosetetcesssessseesereercorees, 2

Art. 125, 10 UGC, GG .ocmeccccesesecsvecssvecneversveceereeceeeer, 2

BARU TI Te UE: GI sassisinvsececaecvccieecniicsnessevscses oes 2

GF SPs MEIN siaccainsioncchackiinadiieanbnsacdtemmocoiesumsmaccisaekicic: 6

Mil. R. Evid.:

RE NII ois cecteb lege 4 cee Le 12

NONE? UIP sscicleiotoncenettsatinctotakieneuseeaskounddiiensouinleeabeas. 4

i AR og, Oe EONS 5,4

eT

In the Supreme Court of the United States

OCTOBER TERM, 1992

No. 93-502

WILLIAM M. LIPS, PETITIONER

v.

COMMANDANT, UNITED STATES DISCIPLINARY

3ARRACKS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. la-Sa,

is reported at 997 F.2d 808. The opinion of the district

conit on habeas corpus, Pet. App. 9a-18a, is un-

ini. The opinion of the Air Force Court of Mili-

tary Review affirming petitioner’s conviction, Pet.

App. 21a-30a, is reported at 22 M.J. 680. The order of

the Court of Military Appeals denying discretionary

review, Pet. App. 20a, is noted at 24 M.J. 45.

JURISDICTION

The judgment of the court of appeals was entered on

July 1, 1993. The petition for a writ of certiorari was

(1)

2

filed on September 28, 1993. The jurisdiction of this

Court is invoked under 28 U.S.C, 1254(1).

STATEMENT

In 1984, at Hahn Air Force Base in Germany, peti-

tioner was convicted by a military court-martial of

rape, in violation of Article 120, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. 920; forcible

sodomy, in violation of Article 125, UCMJ, 10 U.S.C.

925; and three counts of aggravated assault, in

violation of Article 128, UCMJ, 10 U.S.C. 928. He was

sentenced to a dishonorable discharge, 20 years’

confinenient, total forfeiture of pay and allowances,

and a reduction in rank. The Air Force Court of

Military Review affirmed petitioner’s conviction and

sentence, Pet. App. 21a-30a, and the Court of Military

Appeals denied discretionary review, id. at 20a.

Petitioner subsequently filed a petition for a writ of

habeas corpus in the United States District Court for

the District of Kansas. The district court granted

the petition, Pet. App. 9a-18a, but the court of appeals

reversed and directed the district court to deny the

petition, id. at la-Sa.

1, On June 3, 1984, petitioner, a member of the

United States Air Force, invited Cynthia Carite to

his quarters for dinner while his wife was away.

After showing Carite a sexually explicit magazine

entitled Penthouse Variations, petitioner forced

Carite to undress, tied her to a coffee table, and

sodomized and raped her, threatening her first with a

knife and then with a gun. Petitioner then placed

“nipple clamps” on Carite’s breasts and beat her with

a belt, after which he forced her to engage in further

sexual acts. After dinner, petitioner again raped

3

Carite, engaged in oral sex, and unsuccessfully

attempted to have anal intercourse with her. Pet.

App. 22a-28a,

The following day, Carite reported the crime to the

authorities. Military law enforcement agents ar-

rested petitioner and informed him of his right

against compelled self-incrimination. Petitioner de-

clined to make a statement. In a search of petitioner’s

residence, the agents seized a videotape and five

magazines containing depictions of explicit sexual

behavior. The dominant theme of those materials was

the physical and sexual abuse of women. Pet. 5; Pet.

App. 3a, 23a.

2. At petitioner’s court-martial, the military judge

admitted the sexually explicit videotape and some of

the magazines into evidence over petitioner’s ob-

jection that their admission violated the ban on “other

crimes” evidence under Mil. R. Evid. 404(b). Pet. App.

24a-2ha.

In its case-in-chief, the government did not present

evidence of petitioner's pretrial silence. During the

defense case, however, petitioner’s attorney asked

him whether he had previously told his side of the

story to a government official. Petitioner replied that

he had not, and he then explained that he had wanted

to talk about the incident but was advised by his

attorneys to remain silent. Petitioner then testified

that Carite had initiated the steps that led to their

engaging in a variety of sexual acts. Petitioner

claimed that Carite falsely accused him of rape after

she asked him for $200 in exchange for the sexual acts

she had performed, but he gave her only $60. Pet. 6;

Pet. App. 3a, 23a-24a.

4

On cross-examination, the prosecutor attempted to

show that the real reason petitioner made no post-

arrest statement was that he wanted to hear the

government's evidence and Carite’s testimony before

giving anyone his version of events so that he could

tailor his testimony to make it more believable.

Petitioner’s counsel did not object to that line of

cross-examination on Fifth Amendment grounds.

Counsel’s only objection during the prosecutor’s

questions on that subject was an unspecific objection

to a compound question asked by the prosecutor. Pet.

7-8.

During closing argument, the prosecutor stated

that while petitioner’s pretrial silence was not evi-

dence of his guilt, petitioner had waited until trial to

tell his story so that he could first hear Carite’s

testimony. Petitioner did not object to that argu-

ment. /d. at 8-9.

3. On appeal to the Air Force Court of Military

teview, petitioner raised 12 issues. As one of those

issues, he challenged the admission of the sexually

explicit videotape and magazines, arguing that they

were not admissible as “other crimes” evidence under

Mil. R. Evid. 404(b), and that their prejudicial impact

substantially outweighed their probative value under

Mil. R. Evid. 403. As another issue on appeal, peti-

tioner contended that the prosecutor improperly

commented on his pretrial silence in violation of this

Court’s holding in Doyle v. Ohio, 426 U.S:.610 (1976).'

Petitioner framed the issue as follows:

' In Doyle, this Court held that due process bars the gov-

ernment from impeaching a defendant with his post-arrest

silence if he was advised at that time of his right to remain

silent.

5

Reversible error occurred during * * * argument

by trial counsel as to the following: (A) improper

comment on [petitioner’s] exercise of his right to

remain silent prior to trial; (B) improper and

inflammatory argument by trial counsel; and (C)

improper statements of law during argument, to

include, but no[t] limited to, shifting the burden of

proof onto [petitioner].

Pet. C.A. App. 63. In the argument portion of his

brief, petitioner contended that the prosecutor im-

properly referred to his pretrial silence in closing

argument; as part of his argument in support of that

contention, petitioner referred briefly to the prosecu-

tor’s cross-examination in which the prosecutor

questioned petitioner about his post-arrest silence.

Id. at 64-69. In response, the government contended

that the sexually explicit material had been properly

admitted into evidence and that petitioner had waived

the Doyle issue by not objecting at trial. See Gov't

C.A. Br. 8-10.

4. The Air Force Court of Military Review af-

firmed petitioner’s conviction. Pet. App. 21a-30a. The

court held that the military judge did not abuse his

discretion by admitting the sexually explicit video-

tape and magazines. Id. at 27a. The court stated that

the material was relevant to show petitioner’s motive,

intent, and preparation, and to corroborate the vic-

tim’s testimony. Ibid. In particular, the court deter-

mined that the evidence was relevant because some of

the sadomasochistie acts depicted in the materials

were similar to petitioner’s sexual acts with Carite.

Id. at 26a.

The Court also rejected petitioner’s Doyle claims,

noting as follows (Pet. App. 28a):

6

|Petitioner| also contends he is entitled to a new

trial because of * * * sentencing arguments by

government counsel. [Petitioner’s| counsel en-

tered no objection at trial to “he now 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 doctrine we

find no basis here to invoke.

The Court of Military Appeals denied petitioner's

request for review without opinion. Pet. App. 20a.

>. In 1988, petitioner filed a petition for a writ of

habeas corpus under 28 U.S.C. 2241, alleging that the

military judge had improperly admitted the sexually

explicit videotape and magazines and that the prose-

cutor had improperly commented on his post-arrest

silence. Pet. 2; Pet. App. 9a-10a. On July 31, 1992, the

district court granted the writ. Pet. App. 18a. With

respect to the sexually explicit materials, the court

found that petitioner had “failed to show that the ad-

mission of those materials resulted in a fundamen-

tally unfair trial.” /d. at lla. The court held,

however, that the prosecutor violated petitioner’s

Fifth Amendment rights by questioning petitioner on

cross-examination about his post-arrest silence. /d.

at 15a. The court found the general objection during

the cross-examination sufficient to preserve the

Doyle issue and concluded, alternatively, that the

“lack of an objection may be disregarded” as “plain

error.” Jd. at 17a.

6. The court of appeals affirmed in part, reversed in

part, and directed the district court to deny the

petition. The court of appeals found that the Air

Force courts, in determining that the prosecutor's

argument was not plain error, applied proper legal

standards and gave “full and fair consideration” to

that issue. The court further held that petitioner did

not adequately preserve the improper cross-examina-

tion issue in the military courts. The court noted

that petitioner made no timely and specifie objection

to the prosecutor’s cross-examination at trial. and

that he made only a brief reference to the cross-

examination issue in his brief on appeal. Because

petitioner had forfeited that claim below, and because

he failed to show “cause and actual prejudice” for his

default, the court of appeals held that he was not

entitled to habeas relief. Pet. App. Ta-8a.

inally, the court of appeals affirmed the district’s

court decision denying petitioner habeas corpus relief

on the sexually explicit materials claim. The court of

appeals concluded that the military courts had fully

and fairly considered petitioner’s claim concerning

the admission of those materials and that there was

therefore no need for further inquiry on that issue.

Pet. App. Sa.

ARGUMENT

Petitioner contends that the court of appeals

applied an unduly restrictive standard for habeas

corpus review of military convictions, and that the

court therefore erroneously refused to grant him

relief from those convictions.”

Petitioner argues in a footnote (Pet. 18 n.9) that this case

should be held pending the Court’s decision in Weiss v. United

States, cert. granted, 113 S. Ct. 2412 (1993) (No. 92-1482).

which presents the questions whether the designation and

selection of military judges satisfies the Appointments Clause

and whether due process requires a fixed term of office for

military judges. Because petitioner did not raise those issues in

the military courts, the district court, or the court of appeals,

|

~

.

l. In Burns v. Wilson, 346 U.S. 137 (1953), this

Court set forth the standard for habeas corpus review

of military convictions. The Court held that because

the military criminal justice system “exists separate

and apart from the law which governs in our federal

judicial establishment,” 7d. at 140, and because

Congress has provided that the determinations of

military courts are “final” and “binding” upon all

courts, id. at 142, citing Art. 76, UCMJ, 10 U.S.C. 876,

it is “not the duty of the civil courts * * * to reexam-

ine and reweigh each item of evidence of the

occurrence of events which tend to prove or disprove

one of the allegations in the applications for habeas

corpus.” /d. at 144. Ra*).er, it is “the limited function

of the civil courts to determine whether the military

have given fair consideration to each of these claims.”

Ibid. That is, “when a military decision has dealt

fully and fairly with an allegation raised in [a habeas

corpus] application, it is not open to a federal civil

court to grant the writ simply to re-evaluate the

evidence.” /d. at 142.°

The Burns test, referred to as the “full and fair

consideration” standard, has consistently been

applied by federal courts in disposing of military

habeas corpus petitions. Although courts have at

they are waived here. See Solorio v. United States, 482 U.S.

435, 451 n.18 (1987).

% The quoted language is from the plurality opinion of

Justice Vinson for four Members of the Court. Justice Minton

concurred in the result, 346 U.S. at 146-148, but because he

favored a more restrictive standard of review, it is clear that a

majority of the Court regarded the standard in the plurality

opinion as setting the limit on the extent to which a habeas

court could review military convictions.

9

times encountered difficulties in determining how

that standard should be applied in particular cases,

see Allen v. VanCantfort, 436 F.2d 625, 629-630 (1st

Cir.) (noting difference among courts in construing

surns test), cert. denied, 402 U.S. 1008 (1971), there

has been no significant divergence of views as to

whether that standard is the appropriate test for

habeas review of military convictions.’ In particular,

the court of appeals in this case adopted the standard

that has emerged as the leading articulation of the

Burns test. See Pet. App. 5a-Ga. Under that stan-

dard, a habeas court can review not only whether the

military courts have given adequate consideration to

a particular claim, but also whether the military

courts have applied the proper legal principles in

addressing that claim. See Khan v. Hart, 943 F.2d

1261, 1262-1263 (10th Cir. 1991): Dodson v. Zelez, 917

F.2d 1250 (10th Cir. 1990); Monk v. Zelez, 901 F.2d

885, 888 (10th Cir. 1990): Calley v. Callaway, 519 F.2d

184, 199-208 (5th Cir. 1975) (en bane), cert. denied, 425

U.S. 911 (1976); Daigle v. Warner, 348 F. Supp. 1074,

1078 (D. Haw. 1972), rev’d on other grounds, 490 F.2d

308 (9th Cir. 1973).°

4 In some of the cases that petitioner cites (Pet. 21 n.17), the

courts have not addressed the question of the proper standard

to apply. Those cases therefore do not bear on the question of

the appropriate standard for habeas corpus review. Other

cases have involved challenges to court-martial proceedings by

means other than habeas corpus; those decisions are thus of

limited relevance to the question of the proper scope of habeas

corpus in challenges to military convictions. See Shaw v.

United States, 357 F.2d 949, 953 & n.4 (Ct. Cl. 1966), and cases

cited therein (claims for back pay for wrongful dismissal).

° All but one of the cases cited by petitioner in support of his

claim that the courts of appeals disagree about the proper

10

Jecause the court of appeals’ articulation of the

“full and fair consideration” standard requires that

the military courts both consider the issue in

question and apply the correct legal standard in doing

so, petitioner is wrong in characterizing the standard

applied by the court of appeals as being “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.” Pet. 22. For the same reason, he is

incorrect in asserting that the Tenth Circuit's

standard of review is “so restrictive 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.” Pet. 24. As this case

illustrates, the Tenth Circuit standard provides for

collateral review of military proceedings when the

habeas petitioner raises substantial constitutional

claims based on legal, rather than factual, grounds.

See, e.y., Khan v. Hart, 943 F.2d 1261, 1263-1265 (0th

Cir. 1991) (reviewing legal issues raised by non-

delegation doctrine); Dodson v. Zelez, 917 F.2d 1250,

1252 (10th Cir. 1990) (reviewing court-martial voting

application of the “full and fair consideration” test (see Pet. 21-

22) pre-date the Fifth Circuit’s 1975 en bane decision in Calley

v. Callaway, supra, in which that court discussed the issue at

length and adopted the standard that has since been applied

regularly in military habeas corpus cases. The one post-1!975

case that petitioner cites is Hatheway v. Secretary of the Army,

641 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864 (1981), a

declaratory judgment action in which the court of appeals

addressed and denied a purely legal challenge to the con-

stitutionality of the provision of the Uniform Code of Military

Justice on which his court-martial conviction was based.

ita caaeaeamneaaai aaa

1]

procedures); Mendrano vy. Smith, 797 F.2d 1538, 1542

n.6 (10th Cir. 1986).°

2. Kiven if there is some divergence among the

courts of appeals as to how the Burns test should be

applied in particular cases, tae resolution of the two

issues presented in this case would be the same

regardless of the precise articulation of the test for

habeas review of military judgments. The court

refused to reach the merits of petitioner’s Fifth

Amendment claims because petitioner failed to show

“cause and actual prejudice” to excuse his failure to

preserve those claims in the military court system.

And the district court denied petitioner’s evidentiary

claim after applying an even more lenient standard of

review, a standard that even petitioner does not claim

was unduly restrictive.

a. Petitioner defaulted on his Fifth Amendment

claims in the military courts, and he has shown no

reason why he should be relieved of that default for

purposes of habeas corpus. It is well settled that,

even in civilian habeas corpus proceedings, a defen-

dant may not raise on collateral attack an issue that

he did not preserve for appeal by making a contempo-

raneous objection at trial unless he can show cause

for his default and actual prejudice resulting from the

Petitioner argues that the Fifth Circuit, in Calley v. Call

away, supra, suggested a standard of review tat reaches the

merits of constitutional claims even when those claims were

given plenary consideration by the military appellate courts.

Petitioner fails to point out, however, that in Dodson v. Zelez,

917 F.2d 1250 (0th Cir. 1990), the Tenth Circuit explicitly

adopted the standard set out in Calley, and that the court of

appeals applied that standard in this case. See Pet. App. 5a-6a,

lla-12a.

12

error in question. See United States v. Frady, 456

U.S. 152, 167-168 (1982); Davis v. United States, 411

U.S. 288 (1973); Wainwright v. Sykes, 433 U.S. 72

(1977) (pretrial right to silence claim). See also Wolff

v. United States, 737 F.2d 877 (0th Cir.) (applying

cause and actual prejudice standard in review of

military habeas petition), cert. denied, 469 U.S. 1076

(1984).

3y failing to object on Fifth Amendment grounds to

the prce-sc.utor’s cross-examination or closing argu-

ment, petitioner forfeited his claim that the prosecu-

tor violated Doyle by improperly commenting on his

post-arrest silence. His single, unspecific objection

during the middle of the prosecutor’s cross-examina-

tion was inadequate to preserve the Doyle issue for

review. See Mil. R. Evid. 103(a)(1). Furthermore, as

noted by the court of appeals, Pet. App. 7a, petitioner’s

failure to present the question of the prosecutor’s

cross-examination as an issue on appeal to the Air

Force Court of Military Review constituted a second

default; the court properly found that the abbreviated

reference to the cross-examination in his brief on

appeal to that court was inadequate to preserve the

issue, and it explained why the court of military

review did not address that issue separately from the

Doyle claim based on the prosecutor’s closing

argument.’ Since petitioner has never established

Petitioner relies (Pet. 26-27) on United States v. Arnold,

425 F.2d 204 (10th Cir. 1970), to argue that the court of appeals

should have considered his Doyle claim in spite of the absence of

a proper objection at trial. Arnold, however, applied the plain

error doctrine on direct appeal from a conviction. Jd. at 206.

3ut the plain error doctrine is inapplicable on collateral attack.

Even in the civilian system, a habeas petitioner must meet the

either “cause” or “actual prejudice” for his default, he

Was not entitled to raise the Doyle issue on collateral

attack of his court-martial conviction.’ See Pet. App.

Sa.

Second, petitioner, not the government, initiated

the inquiry into his post-arrest silence during direct

examination and renewed that inquiry on redirect ex-

amination. Petitioner’s counsel apparently thought

that it was important for petitioner’s defense of

consent to bring out the fact that petitioner had not

made a statement at the time of his arrest and to

more stringent “cause and actual prejudice” test. See Frady,

156 U.S. at 164. Petitioner also suggests (Pet. 27-28) that Doyle

itself does not require an objection at trial to preserve the issue

on appeal or collateral attack. Doyle, however, was a direct

appeal, and the defendants objected to the prosecutors’ com-

ments on their post-arrest silence. 426 U.S. at 614-616.

Nothing in Doyle or any other decision of this Court suggests

that a Doyle error can be raised for the first time on appeal or

on collateral attack.

* Petitioner’s attempt to extend the holding of Doyle, which

barred the prosecutor from initiating an inquiry into the

defendant's post-arrest silence, to a case in which the defendant

initiates the inquiry into his post-arrest silence as a matter of

trial tactics, violates the ban on using habeas corpus to create a

“new rule” of law. A habeas petitioner seeks a “new rule” if

his claim was not dictated by existing precedent at the time of

his conviction or if his interpretation of the law was susceptible

to debate among reasonable minds at the time his conviction

became final. See Saffle v. Parks, 494 U.S. 484, 488 (1990):

Butler v. McKellar, 494 U.S. 407, 413-415 (1990). Petitioner’s

extension of Doyle to cases in which the defendant first raises

the issue of his post-arrest silence is certainly not dictated by

Doyle itself; at the very least, it is debatable whether that

extension of Doyle is compelled by the principles the Court

developed in Doyle.

oOo

14

elicit petitioner’s explanation of why he had not done

so. But having raised the issue of his post-arrest

silence and having given his explanation for. it,

petitioner could not then deny the prosecutor an

opportunity to probe the issue on cross-examination

and address it during closing argument. See United

States v. Pino, S27 F.2d 1429, 1432 (0th Cir. 1987):

Lebowitz v. Wainwright, 670 F.2d 974, 980-981 (11th

(ir. 1982). See also United States v. Robinson, 485

U.S. 25, 32 (1988) (no Fifth Amendment violation

where prosecutor merely responded to defendant’s

comment on his right to remain silent).

b. Petitioner also contends that the court of

appeals erred by not reviewing on the merits his

claim that the military judge improperly admitted

evidence that he possessed sadomasochistic materi-

als. Even on habeas corpus review of federal and state

convictions, courts do not review the admission of

other crimes evidence at a criminal trial de novo.

Instead, such review is limited to whether the admis-

sion of that evidence resulted in a fundamentally

unfair trial in violation of due process. See Hstelle v.

McGuire, 112 S. Ct. 475, 480-482 (1991). Here, the

district court specifically held that the admission of

the sexually explicit materials at petitioner’s court-

martial did not result in a fundamentally unfair trial.

Pet. App. lla; see also id. at 24a-27a (concluding that

the probative value of the sexually explicit materials

was not outweighed by its prejudicial value).

Although petitioner contends that the sexually

explicit materials were not relevant to any material

issue at trial, they were actually highly relevant.

The Penthouse Variations magazine was relevant

because, according to Carite, petitioner showed her

1h

that magazine immediately before forcing himself on

her. The introduction of the magazine thus corrobo-

rated the details of her story and supported her

account that petitioner took the initiative in raising

the subject of sex. The remaining magazines and the

videotape, which were predominately sadomasochistic

in theme, were particularly relevant, since peti-

Lioner’s sadomasochistic rape and sodomy of Carite

mirrored some of the acts port rayed in the magazines

and the videotape. Proof that petitioner possessed

those materials tended to show that petitioner raped

and sodomized Carite to fulfill his aberrant sexual

desires, and to rebut petitioner’s contention that

Carite had initiated sadomasochistic sex between

them.” Petitioner is therefore not entitled to relief on

either of the grounds on which he challenges his

court-martial conviction.

Petitioner contends (Pet. 29-30) that the decision of the

courts below upholding the admission of the sexually explicit

materials conflicts with Loa. ly v. United States. 169 F.2d 386

ith Cir. 1948). Lovely was a rape case in which the defendant

alleged consent. Over the defendant's objection, the prosecu

tion presented evidence that the defendant had raped another

woman. The Fourth Circuit reversed the conviction, holding

that evidence of the other rape should not have been admitted

because it was not relevant to any material issue in the case. In

this case, by contrast, the materials that focused on sexual

abuse of women tended to support Carite’s story of the rape

and other sexual assaults. What is more. because this case was

on habeas corpus the district court limited its inquiry to

whether the admission of the evidence rendered the trial fun

damentally unfair, not, as in Low ly, whether the evidence was

admissible under the rules of evidence.

16

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

THOMAS E. BOOTH

Attorney

DECEMBER 1993