United States v. Forbes

PRICE, Senior Judge: Contrary to his pleas, the appellant was convicted of violation of a general order (three specifications), violation of a lawful order, rape, consensual sodomy, adultery (two specifications), indecent assault (two specifications), indecent language (three specifications), obstruction of justice (three specifications) and giving alcohol to a minor (two specifications), in violation of Articles 92, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 925, and 934. A general court-martial consisting of officer members sentenced the appellant to confinement for 15 years, reduction to pay grade E-l, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged. However, as an act of clemency, he also deferred both adjudged and automatic forfeitures until the date of his action, then suspended all adjudged forfeitures and waived all automatic forfeitures for six months. The waived forfeitures were ordered paid to the appellant’s wife. The appellant originally filed 21 assignments of error, including factual and legal insufficiency of evidence as to most of the specifications. We subsequently chose to hear oral argument on only one of the assignments of error: THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS REGARDING THE ACCUSED’S SILENCE OVER HIS OBJECTION. Following oral argument before a panel of judges, the court decided, sua sponte, to hear this case en banc. We notified the parties of this decision and permitted supplemental pleadings to be filed, if desired. In partial response, the appellant requested oral argument before the court en banc on the same instructional issue previously heard, as well as three other assignments of error. The government filed a responsive pleading. The court granted the motion for oral argument en banc, but again only as to the instructional issue. Having carefully considered the assignments of error, the Amicus Brief, the Government’s responses, and the oral arguments, we conclude that the evidence is legally and factually sufficient for all findings of guilty, and that the military judge’s instruction error deprived the appellant of military due process which amounted to prejudicial error. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Thus, we must set aside the findings and sentence and return the record to the Judge Advocate General for remand to the convening authority, who may order a rehearing. I. Background The appellant was a married Navy recruiter serving in rural Kentucky. The charges stem from his relationships with four high school-age girls who had expressed interest in enlisting in the Navy. After his alleged misconduct was reported to Naval authorities, the appellant was charged with trying to cover it up by telling some of the victims not to say anything to investigators. At trial, each of the four female complainants testified on the merits. In addition, the Government offered substantial corroborating evidence in support of the charges and specifications. The appellant mounted a vigorous defense, but he did not testify on the merits. II. Factual and Legal Sufficiency of the Evidence This court’s standard of review for sufficiency of the evidence is set forth in Article 66(e), UCMJ: — 936 — In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. Further, this standard and its application have been recognized and defined by the Court of Appeals for the Armed Forces: [Ujnder Article 66(c) of the Uniform Code, 10 U.S.C. § 866(e), the Court of [Criminal Appeals] has the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency. The test for the former is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of [Criminal Appeals] are themselves convinced of the accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 324-25 (C.M.A.1987). We conclude that a reasonable factfinder could properly have found, beyond a reasonable doubt, that the appellant committed each of the offenses of which he stands convicted. Moreover, after careful consideration, we are convinced beyond a reasonable doubt that the appellant committed each of those same offenses. III. Instruction on Appellant’s Failure to Testify A. Background The appellant contends that the military judge erred in instructing the members concerning the fact that the appellant did not testify on the merits. We agree. Moreover, because of the great risk of prejudice to the appellant, we conclude that the military judge’s error requires reversal. To set the scene for our discussion of the legal issue, we will quote liberally from the record. At the conclusion of evidence on the merits, the military judge held Article 39a, UCMJ, sessions to discuss findings instructions. After discussing various proposed instructions, including the possibility of exceptions and substitutions, the military judge raised the issue at hand: MJ: I don’t think really that exceptions and substitutions are really raised in anything else except the sodomy, except out— if they did find [sic] guilty of the LIO of consensual, you can except out the language that had to do with forcibleness. So, they need to have that possibility, as well in the findings worksheet. The instruction on the accused’s silence. ADC: Sir, we would waive that reading, sir. MJ: You don’t want to have that instruction? ADC: No, sir. MJ: Do you object to that instruction? ADC: Yes, sir, we do. I don’t even — has that been even commented on, sir. Well, the fact that he didn’t testify, we would rather not draw attention to that. MJ: It says, “The accused has an absolute right to remain silent. You are not to draw any inference adverse to the accused”— ADC: Yes, sir. We want to waive — object to that, sir. MJ: You object to it? Well, I will have to consider that. That is a standard instruction. Normally it is given and its intent— my intent is to protect the accused from any adverse feelings by the members. I know it calls attention to it, and that is probably your objection to it. I understand. Do you want to be heard further? ADC: No, sir. MJ: Let me think about that one. — 937 — Record at 1664-66. Soon after that colloquy, the court recessed for about one hour. When the court reconvened in an Article 39a, UCMJ, session, the following discussion ensued: MJ: The court will come to order. The record shall reflect all parties who were present when the court recessed are again present. The members are absent. The record shall reflect that the proposed findings instructions have been marked as Appellate Exhibit CXXIII. Copies have been provided to both sides. There were two issues outstanding, one was whether I would give the instruction on the accused’s silence. I feel that that is necessary to give unless the defense has case law to cite for the proposition that I-shouldn’t give it even though the defense objects. ADC: You feel it’s necessary? MJ: I do feel it’s necessary. ADC: We would object to giving them that instruction. MJ: Do you have any case law to support the proposition it’s not to be given over defense objection? ADC: No, sir. Other courts have argued in the military — have objected— MJ: No case law? ADC: No, sir. MJ: I just think it’s important to tell the members that so they don’t go back and ask the question about why the accused didn’t testily. That’s my thought — and also instruct them that they are not to hold that against the accused in any way. ADC: Yes, sir. Record at 1676-77. In a later Article 39a, UCMJ, session, the military judge addressed the issue of placement and timing of the instruction: MJ: The court will come to order. The record shall reflect all parties who were present when the court recessed are again present. The members are absent. The record shall reflect I made some minor pen and ink changes or corrections, not changes, corrections to the findings instructions. The record shall reflect that during the recess, defense counsel requested that the last instruction given to the members not be on the accused’s silence, that I read that instruction, my verbal reading of the instruction before findings by exceptions and I intend to do that. Record at 1686. Unfortunately, the military judge’s intention was not fulfilled. Before any arguments on findings were heard, the military judge gave the members substantive instructions on the elements of the charged offenses, defenses, the burden and standard of proof, evidentiary instructions, and exceptions in the findings. Contrary to his earlier assurance to the defense team, the military judge then gave the accused’s silence instruction last: MJ: The accused has an absolute right to remain silent. You will not draw any inference adverse to the accused by the fact that he did not testify as a witness. The fact that the accused has not testified must be disregarded by you. Trial counsel, do you desire to begin argument now, or do you want a recess? Record at 1730. The court then recessed for one minute. After the recess, this was the first thing the military judge said: MJ: Counsel, I apologize. It was an oversight on my part. Are there any objections to the instructions that are already in the record, the instructions given, or requests for additional instructions or corrections of any kind? ADC: No additional objections, sir. Record at 1731 (emphasis added). Although the military judge did not explain the reason for his apology, based on our review of the record and the oral arguments, we find that the military judge apologized for giving that instruction last, after assuring counsel that he would not do so. After findings were announced, and during the preliminary Article 39a, UCMJ, session to discuss sentencing issues, the defense moved for a mistrial based on (1) the admission of uncharged misconduct,1 (2) the mili — 938 — tary judge’s refusal to allow the defense to offer a physician’s testimony relative to a defense of factual impossibility, (3) the failure of the Government to produce a defense witness on the merits, (4) the military judge’s refusal to allow the members to view the vehicles where the rape, sodomy and adultery allegedly occurred, and (5) the military judge’s instruction on the appellant’s failure to testify, particularly the placement and timing of that instruction. In pertinent response, the military judge said: There was error, my error, that I had agreed to give the accused’s silence instruction other than the last instruction in my substantive instructions. However, I don’t think that that was an error of such a grave nature to warrant the extraordinary remedy of mistrial. Record at 1864. The military judge then denied the motion for a mistrial. B. Applicable Law We now turn to the relevant rules of law. Rule for Courts-Martial 920, Manual for Courts-Martial, United States (1998 ed.) addresses instructions on findings, generally. R.C.M. 920(e), Required instructions, does not address the issue of an accused who does not testify. But, the following Discussion offers this guidance: “Other matters which may be the subject of instruction in appropriate cases included: ... that no adverse inferences may be drawn from an accused’s failure to testify [see Mil. R. Evid. 301(g), Manual for Courts-Martial, United States (1998 ed.)].” Mil. R. Evid. 301(g) reads as follows: Instructions. When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counset’s election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice. (Emphasis added).2 While the plain language of Mil. R. Evid. 301(g) is quite clear, we think the Analysis dispels any doubt about the meaning and application of the Rule: Instructions. Rule 301(g) has no counterpart in the 1969 Manual. It is designed to address the potential for prejudice that may occur when an accused exercises his or her right to remain silent. Traditionally, the court members have been instructed to disregard the accused’s silence and not to draw any adverse inference from it. However, counsel for the accused may determine that this very instruction may emphasize the accused’s silence, creating a prejudicial effect. Although the Supreme Court has held that it is not unconstitutional for a judge to instruct a jury over the objection of the accused to disregard the accused’s silence, it has also stated: “It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection.” Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). Rule 301(g) recognizes that the decision to ask for a cautionary instruction is one of great tactical importance for the defense and generally leaves that decision solely within the hands of the defense. Although the military judge may give the instruction when it is necessary in the interests of justice, the intent of the Committee is to leave the decision in the hands of the defense in all but the most unusual cases. Manual for Courts-Martial, United States (1998 ed.), App. 22, at A22-6-7 (emphasis added). — 939 — C. Standard of Review The standard of review for most trial rulings on instructional issues is abuse of discretion, particularly when an instruction is requested by the defense. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A.1993). However, for mandatory instructions, and for decisions as to whether lesser included offenses are raised by the evidence, the standard of review is de novo. United States v. Smith, 50 M.J. 451, 455 (C.A.A.F.1999). So far as we can tell, no precedent addresses the standard of review for a military judge’s decision to give a failure-to-testify instruction over defense objection, a decision that we believe falls somewhere between the two fields of instructional decisions described above. Under Mil. R. Evid. 301(g), the election of the defense team is binding on the military judge except when necessary in the interests of justice. Thus, the military judge has no discretion in his ruling, unless the interests of justice override the defense election. If the case-specific interests of justice give the military judge pause, the judge would have to weigh the concerns of the defense team against those interests of justice. In essence, the judge then must perform a balancing test before he can decide whether to give the instruction. In our determination of the appropriate standard of review, we think an analogy to established case law for evidentiary rulings involving another balancing test is helpful. In considering an issue of admissibility of evidence in sentencing, our superior court summarized the standard of review as follows: A military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Sullivan, 42 MJ 360, 363 (1995). Sentencing evidence, like all other evidence, is subject to the balancing test of Mil.R.Evid. 403, Manual, supra. United States v. Rust, 41 MJ 472, 478 (1995). A military judge enjoys “wide discretion” in applying Mil.R.Evid. 403. Id. “Ordinarily, appellate courts ‘exercise great restraint’ in reviewing a judge’s decisions under Rule 403.” United States v. Harris, 46 MJ 221, 225 (1997), quoting Government of the Virgin Islands v. Archibald, 28 V.I. 228, 987 F.2d 180, 186 (3d Cir.1993). When a military judge conducts a proper balancing test under Mil. R.Evid. 403, the ruling will not be overturned unless there is a “clear abuse of discretion.” United States v. Ruppel, 49 MJ 247, 250 (1998). This Court gives military judges less deference if they fail to articulate their balancing analysis on the record, and no deference if they fail to conduct the Rule 403 balancing. See [] Archibald, supra. Because the military judge in this case did not conduct a Rule 403 balancing, we have examined the record ourselves. United States v. Lebovitz, 669 F.2d 894, 901 (3d Cir.1982), cited with approval in Archibald, supra. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F.2000). Thus, for admissibility of sentencing evidence, if the military judge conducts the balancing test, and articulates how he did so on the record, the standard of review is clear abuse of discretion. If he conducts the balancing test, but does not articulate how he did so, he is accorded less deference. If he does not conduct the balancing test, the standard of review is de novo. Similarly, we hold that when a military judge gives a fail-to-testify instruction over defense objection, after having identified the case-specific “interests of justice” that support his decision and articulating his analysis of those interests relative to the defense election, then he should be accorded great deference under a standard of review of abuse of discretion. If he identifies the interests of justice in question but does not articulate his balancing of those interests with the defense election, he is accorded less deference. If he does not identify interests of justice at all, the standard of review is de novo. Based on our review of the record, we find that the only reason the military judge gave the instruction was his fear that the members would hold the appellant’s silence against him, unless specifically instructed not to do so. As the Analysis to Mil. R. Evid. 301(g) indicates, that is certainly consistent with traditional practice and general inter — 940 — ests of justice. However, the plain language of the Rule and the Analysis reveals that the “interests of justice” require something more, for such a fear could be argued in every such ease of silence of the accused. At both oral argument sessions, we asked the Government to identify anything in the record that indicates that the military judge considered some specific “interests of justice” before making his ruling. We suggested that perhaps a member might have asked a question about the accused’s failure to testify or that a member made a comment during the voir dire process indicating a desire to hear the accused’s side of the story during the trial. See United States v. Farrington, 14 C.M.A. 614, 34 C.M.R. 394, 1964 WL 5034 (1964). The Government could not identify such an “interest of justice.” Based on our scrutiny of the record, we cannot find anything either. Accordingly, since the military judge did not identify “interests of justice,” we conclude that the appropriate standard of review for this issue is de novo. D. Discussion We hold that the military judge erred in giving this instruction over defense objection. The military judge’s failure to articulate any “interests of justice,” other than the standard fear of member misuse of the appellant’s silence, indicates that such “interests of justice” simply did not exist. The standard fear that members might hold an accused’s silence against him has already been accounted for by the President and resolved by giving the election to the defense team, where we think it rightfully belongs. In the words of the Analysis to Mil. R. Evid. 301(g), we do not think that this is one of those “most unusual cases” that warranted giving the instruction over defense objection. Having concluded that the judge committed error, we must now determine how that may have affected the deliberations and findings. Put another way, the question becomes: By what test should we determine whether material prejudice is manifest in this record of trial? Since this is an instructional issue of first impression, we tread carefully in this area in formulating the appropriate test. The appellant has argued for adoption of a test of harmless error. That argument goes something like this: Since Fifth Amendment due process is at stake, the standard should be the traditional constitutional error test of harmless error, and more specifically, harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Moore, 1 M.J. 390 (C.M.A.1976). The Government has argued for a test that would impose the burden of proof upon the appellant. Under this test, the appellant would have to articulate those facts and circumstances demonstrating material prejudice to his right to a fair trial. Specifically, the appellant would have to somehow prove that the instruction was disregarded, misunderstood, or wrongly applied by the members in their deliberations. We are not persuaded by either side. In our judgment, the appellant’s argument fails because of the United States Supreme Court’s decision in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). In Lakeside, the defense objected to a fail-to-testify instruction similar to the one given in this ease. The judge overruled the objection, explaining “it was necessary ... to properly protect the defendant,” an explanation akin to the one given by the military judge in this case. Id. at 335, 98 S.Ct. 1091. On appeal, the defendant argued that the instruction violated his privilege against self-incrimination under the Fifth Amendment and his right to counsel under the Sixth Amendment. The majority opinion rejected both arguments, holding that those constitutional provisions did not protect the defendant under these circumstances. While the defendant’s general Fifth Amendment right to due process was not specifically addressed in the majority opinion, we believe that the Supreme Court surely would have invoked that bedrock principle had it felt that it conferred some constitutional protection upon Mr. Lakeside that the other constitutional provisions did not. Even the dissenting opinion chose not to articulate some basis for relief based upon general due process concerns. Therefore, we conclude that the Supreme Court implicitly rejected the appellant’s due process argument in Lakeside by holding that no constitutional error occurred. — 941 — If no constitutional error occurs when a military judge gives the instruction over defense objection, then the harmless error test is not appropriate. As to the Government’s argument, we cannot accept the notion that the appellant should have to prove material prejudice when the President has written a defense-friendly rule such as Mil. R. Evid. 301(g). We note in passing that this rule is truly unique; there is no other comparable rule of procedure, evidence, or instruction in the Manual for Courts-Martial that gives the accused the power to control what happens in the courtroom. Considering the plain language of the Rule, coupled with the strong language in the Analysis, we conclude that it would be improper to impose any burden upon the appellant to show prejudice. Instead of taking either side’s approach, we choose to take the middle ground. We conclude that, when a military judge commits error by giving this instruction over defense objection in the absence of articulated case-specific interests of justice, a presumption of prejudice results. The Government then bears the burden of showing by a preponderance of the evidence why the appellant was not prejudiced by the instruction. Admittedly, this may be a difficult burden for the Government to bear. But, this court did not write the Rule, and on the issue of an appropriate test for prejudice, we feel compelled to take our cues from the President’s language that so clearly favors the military accused. We reach our conclusion partially based on the fact that the Military Rules of Evidence were enacted in 1980, just two years after the Lakeside decision left this legal suggestion on the table: “It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each state is, of course, free to forbid its trial judges from doing so as a matter of state law.” Lakeside, 435 U.S. at 340, 98 S.Ct. 1091. By enacting Mil. R. Evid. 301(g), we conclude that the President accepted the Court’s suggestion and established a clear marker for military due process in trials by court-martial. See United States v. Jackson, 6 M.J. 116, 117 (C.M.A.1979)(instructional error was denial of military due process); see also United States v. Davis, 47 M.J. 484, 486 (C.A.A.F.1998)(“[W]here the President unambiguously gives an accused greater rights than those conveyed by higher sources, this Court should abide by that decision unless it clearly contradicts the express language of the Code.”). While the Supreme Court has held that this is not a constitutional issue per se, the President nonetheless has chosen to confer a valuable due process right upon the military accused. We also recognize that the Government was not aware of this new test for prejudice that we adopt in this decision. Because the Government is, therefore, somewhat handicapped in their advocacy of a ease for no prejudice or minimal prejudice, we have sua sponte scrutinized the record to discern any evidence that the appellant was not prejudiced by the instruction. The Government, did, in effect, address this presumption of prejudice by arguing that the evidence was so strong in support of conviction that the instruction could not have influenced the deliberations. We, however, are not persuaded by such a speculative argument. Moreover, we disagree that the Government’s evidence was dispositive of the factual and legal issues of guilt. While the Government presented a strong evidentiary case, the defense called 22 witnesses, offered two stipulations of expected testimony, a stipulation of fact and several other exhibits. From this, the members could have concluded that there was reasonable doubt as to one or more of the charges and specifications that ultimately resulted in convictions. As we analyze the record, we note the following factors in evaluating the potential for prejudice. First, the defense did not simply object in passing, it objected several times in two different Article 39(a), UCMJ, sessions. That suggests that the defense team suspected that, for strategic or tactical reasons, such an instruction could devastate their chances for fair and just deliberations. The military judge overruled the objections. Second, having lost the first battle, the defense attempted to mitigate the potential prejudice by asking the military judge to — 942 — bury the instruction among the other evidentiary instructions instead of leaving it last in the minds of the members just before the prosecutor’s opening argument. The military judge failed to do so. Third, having lost that second battle, the defense team used their last available tool: a motion for mistrial. Among the bases for that motion was the military judge’s ruling on the instruction. In our view, while not dispositive, these factors assist in our determination of potential prejudice. In sum, it is manifest that, for the defense team, the instruction was a potential showstopper. Otherwise, they would not have continued to aggressively beat the drum before the military judge in their effort to protect the appellant. Based on our collective experience, it is not hard to see why the defense team was so concerned. After hearing from numerous witnesses on the merits, including comprehensive testimony from the complainants, court members might well expect a 37-year-old senior petty officer, with his liberty, military career, and potential retirement pension at stake, to testify in his own behalf. For a panel of members, that could easily be taken the wrong way. As the U.S. Supreme Court observed in Lakeside: It has often been noted that such inferences may be inevitable. Jeremy Bentham wrote more than 150 years ago: “(Between delinquency on the one hand and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.” 5 J. Bentham, Rationale of Judicial Evidence 209 (1827). And Wigmore, among many others, made the same point: “What inference does a plea of privilege support? The layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.” 8 J. Wigmore, Evidence § 2272, p. 426 (McNaughton rev.1961). 435 U.S. at 340 n. 10, 98 S.Ct. 1091. We conclude that the presumption of prejudice has not been rebutted. Thus, by having his silence highlighted by the instruction over objection, under the facts and circumstances of this case, we hold that the appellant was deprived of military due process. Accordingly, we must take appropriate corrective action. IV. Conclusion Based on our ruling on the instructional error, the remaining assignments of error are moot. The findings and sentence are set aside. The record is returned to the Judge Advocate General. A rehearing may be ordered. If a rehearing is not ordered, the charges and specifications shall be dismissed. Senior Judge CARVER, Judge SUSZAN, and Judge HARRIS concur. Footnotes [1] Earlier in the trial, during the testimony of Chief Petty Officer Brumback, the defense made a motion for mistrial, complaining of uncharged misconduct during the Chief’s testimony. After extensive argument, the military judge denied the motion but allowed an 18-hour recess to give the — 938 — defense an opportunity to prepare to counter the unexpected testimony. Record at 1011-48. [2] As seen in the extracts from the record quoted earlier, none of the parties to this court-martial explicitly referred to this Rule in their discussion of the issue at trial. We note, with displeasure, that neither side cited the rule in their original briefs before this court, despite the reference to it in R.C.M. 920. Finally, we also note that the critical language in the Rule is repeated almost verbatim in the Military Judges’ Benchbook. Military Judges’ Benchbook, Dept, of the Army Pamphlet 27-9 at 829 (30 Sep 1996).