United States v. Boles

Opinion of the Court FLETCHER, Judge: Consistent with his pleas, the appellant was found guilty of larceny of motorcycle parts of some value, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. On August 21, 1979, the members of his special court-martial sentenced him to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $279.00 pay per month for 6 months and reduction to E-l.1 The convening and supervisory authorities approved this sentence. The United States Air Force Court of Military Review reduced the approved sentence of confinement and forfeitures by a period of 2 months due to the improper admission of evidence of the appellant’s pri- or service use of drugs, but otherwise affirmed the findings and sentence. The issue granted for review (9 M.J. 4 (1980)) by this Court is: WHETHER THE LETTER OF REPRIMAND GIVEN TO THE APPELLANT FOR AN ALLEGED OFF-BASE, OFF-DUTY FIRE-BOMBING WAS ADMISSIBLE TO AGGRAVATE THE SENTENCE SINCE THE APPELLANT WAS STILL PENDING TRIAL FOR THE OFFENSE IN CIVILIAN COURTS. This letter of reprimand was administrative rather than punitive in nature because it was not a product of a court-martial or Article 15, UCMJ, 10 U.S.C. § 815, proceeding. Para. 128c, Manual for Courts-Martial, United States, 1969 (Revised edition). See paras. 126/ and 131c, Manual, supra. It was issued to the appellant by his immediate commanding officer on August 15, 1979. The latter ordered it included in the appellant’s Unfavorable Information File (UIF) on August 16, 1979, five days before his court-martial for the larceny offense. See generally Unfavorable Information Files (UIFs), Control Rosters, Administrative Reprimands and Admonitions, AFR 35-32 (September 22,1975, as amended by Change 2, July 10,1978).2 It was actually placed in his file on August 17, 1979. The letter states: 1. Preliminary investigation has disclosed that you did, at Clovis, N.M., on or about 5 Aug. 79, willfully and maliciously throw a molotov cocktail that set fire to the house door and automobile, the property of Tony Garcia. 2. You are hereby reprimanded. By your conduct you adversely reflected upon yourself as a member of the United States Air Force. Further, incidents of this nature will not be tolerated and it is expected that your future conduct will set and [sic] example for your fellow associates. The letter of reprimand was also accompanied by a report of the civilian police investigation of this offense. See para. 5a. It included inter alia a report of the appellant’s arrest and his purported confession. Defense counsel objected to the introduction at trial of these matters as evidence to be considered by the members in arriving at an appropriate sentence for the appellant’s larceny offense. He argued that such evidence was inflammatory and hurriedly prepared for court-martial rather than for the legitimate administrative purposes intended in the service regulations. Trial counsel responded that such matters were included in the appellant’s UIF in accordance with service regulations for the purpose of aggravating the appellant’s case. The military judge reviewed the applicable service regulations and overruled the objection without comment. The exhibit was admitted by the military judge. Later, trial counsel examined defense witnesses with respect to this alleged civilian offense and [197] made repeated direct references to it in his closing argument on sentence. The first question we must address is whether prosecution. exhibit 4, which contained the above materials, was properly admitted by the military judge during the sentencing portion of appellant’s court-martial. Article 36, UCMJ, 10 U.S.C. § 836; see generally para. 75, Manual, supra. If this evidence was inadmissible at the court-martial, we must then determine whether the appellant was prejudiced as a result of its erroneous admission by the military judge. Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970). I Government counsel argues that evidence of alleged criminal misconduct by the appellant in the civilian community was admissible during the sentencing portion of his court-martial under paragraph 75d, Manual, supra. See generally United States v. Mack, 9 M.J. 300, 315-19 (C.M.A. 1980). He first asserts that such information was properly maintained in appellant’s UIF in accordance with departmental regulations. See generally AFR 35-32. Secondly, he notes that because a UIF is a record maintained at the Consolidated Base Personnel Office (CBPO) (para. 3) as a personnel record of the appellant’s past conduct, it automatically qualifies for admission at the court-martial under the above Manual provision. Para. 5-13, AFM 111-1 (5 March 1979). We find such an argument to be unpersuasive in the present case. A similar question involving civilian criminal misconduct was addressed in United States v. Cook, 10 M.J. 138 (C.M.A.1981). There, this Court held that a record of a Florida procedure of withholding adjudication after a plea of guilty was a record of “civil court convictions, or judgments equating to convictions” within the meaning of paragraph 5b(2), AFR 35-32.3 We held that it was properly included in the appellant’s UIF in accordance with this provision of the regulation and was admissible as evidence at Cook’s court-martial as a personnel record of past conduct under paragraph 75d, Manual, supra. In the present case, information concerning the appellant’s alleged involvement in a civilian criminal offense was included in the appellant’s UIF by means of an administrative letter of reprimand and accompanying documentation. Unlike the situation in United States v. Cook, supra, no serious argument can be made that this administrative action falls within the ambit of paragraph 5b(2). Moreover, the Government would also be sorely pressed to argue that the civilian police report with its record of arrest and purported confession is a “civil court convictio[n] or judgmen[t] equating to [a] convictio[n],” since appellant had not yet been tried in the civilian community. Accordingly, this information could not properly be included in the appellant’s UIF on the basis of the particular regulatory provision utilized in United States v. Cook, supra, nor could it be admitted at the court-martial in this evidentiary posture. Nevertheless, the Government asserts that an administrative reprimand and its accompanying documentation themselves are properly included in the appellant’s UIF under a different provision of this same regulation. See para. 5a(7).4 Therefore, it argues that all the above information concerning allegations of civilian criminal misconduct could be maintained as a personnel record in accordance with this regulatory [198] provision and thus, it was properly admitted at court-martial under paragraph 75d, Manual, supra. Cf. United States v. Newbill, 4 M.J. 541 (A.F.C.M.R.1977). Such an argument presumes too much in the present case. We hold, for purposes of paragraph 75d, Manual, supra, that this commanding officer’s reprimand of the appellant for alleged civilian misconduct did not comport with regulations which define the administrative reprimand properly included in a UIF under paragraph 5a(7). Accordingly, it should not have been admitted at the court-martial under paragraph 75d, Manual, supra. Section C, AFR 35-32, contains the regulations which “facilitate a clearer understanding of the nature and use of the administrative reprimands and admonitions.” Para. 19. While the stated intention of these regulations is not to constrain the discretionary authority or flexibility of the commanding officer, we do not believe they can simply be ignored by this Court and others in determining whether such a record of an administrative reprimand was properly admitted at the court-martial. See United States v. Cohan, 20 U.S.C.M.A. 469, 43 C.M.R. 309 (1971). Otherwise, the President’s concern for fairness and some limitation in the sentence procedure as reflected in paragraph 75d, Manual, supra, could be avoided by selective reliance on regulatory terms taken out of context which are overly broad or beyond the expertise or knowledge of this Court.5 An administrative reprimand as defined by this regulation is a “management too[l] available to commanders ... to reprove and instruct subordinates for departing from acceptable norms of performanee, conduct or bearing.” It is “corrective rather than punitive in nature” and carries with it “a strong implication of official censure.” Para. 20. It is “not [to] be confused with punitive reprimands ... administered as a consequence of either court-martial conviction, or acceptance of nonjudicial (Article 15, UCMJ) punishment.” Para. 21. Instead, it is intended to be judiciously used as “an effective management device to assist in maintaining Air Force standards and accomplishing the Air Force mission.” Para. 22. The decision to place an administrative reprimand in a member’s UIF rests with his commanding officer. Para. 23. The record of trial does not state the particular purpose for which this commanding officer issued the reprimand of August 15, 1979, to the appellant. It does contain the frank admission of trial counsel that this reprimand was placed in the appellant’s UIF “to aggravate the case” against him. We observe that the commander notified the appellant of this intended action on the same day he issued the administrative reprimand to the appellant. In addition, the administrative reprimand was issued a mere five days after the alleged incident occurred and well before the matter was finally resolved by civilian authorities. See para. 5b(2). Moreover, both these administrative actions were taken less than a week before the appellant’s court-martial for the larceny offense. Finally, an administrative reprimand for arson by firebombing hardly seems a judicious or effective use of this management tool. In view of the above and in the absence of contravening evidence from the Government, we conclude the defense has shown that this reprimand was issued by the commanding officer and [199] placed in his UIF for the purpose of influencing the appellant’s present court-martial. The question before this court is whether such action comports with the regulation concerning administrative reprimands. See para. 75d, Manual, supra. We conclude that it does not. See also Article 37, UCMJ, 10 U.S.C. § 837. The action of the commanding officer as represented by trial counsel was clearly intended to be punitive, not corrective, in nature. The stated purpose was to aggravate the punishment that the upcoming court-martial would award the appellant. This is not a purpose consistent with the letter and spirit of the administrative reprimand regulation. Moreover, this action by the commanding officer was not intended as a management tool but rather as a means to influence the outcome of a court-martial. While admittedly great discretion is given by the administrative reprimand regulation to commanding officers in the use of this management device, no valid argument can be made that it extends to the deliberate influencing of a court-martial in the military justice system.6 See Article 37. Accordingly, we do not believe this administrative reprimand with accompanying documentation was issued and properly maintained in appellant’s UIF in accordance with the letter or spirit of this regulation for the purpose of paragraph 75d, Manual, supra. Cf. United States v. Cook, supra. Since no other Manual provision is proffered to lawfully permit its admission at the court-martial, this prosecution exhibit was not properly before the court members. Compare paras. 75b (2) with 76a (2), Manual, supra, and United States v. Worley, 19 U.S.C.M.A. 444, 42 C.M.R. 46 (1970). II The second question to be resolved is whether the appellant was substantially prejudiced by the erroneous admission of this evidence during the sentence portion of his court-martial. Article 59(a). We believe that he was so prejudiced for several reasons. First, we are not “confident that the improperly [admitted] evidence had an imperceptible effect” on the court members’ “determination of a just and adequate sentence in this case.” United States v. Montgomery, supra at 40, 42 C.M.R. at 232. This evidence concerned an act of criminal misconduct in the civilian community allegedly committed just prior to his court-martial for the larceny offense. This was the only evidence in the case of the appellant’s involvement with law enforcement authorities (cf. United States v. Montgomery, supra), and it characterized the appellant clearly as a recent and repeated criminal offender.7 In addition, the particular act of [200] misconduct was arson or firebombing an individual’s home by means of a molotov cocktail in an act of revenge. This is substantial in character because of the aggravated nature of such an offense. See generally Clark and Marshall, A Treatise on the Law of Crimes §§ 13.09-13.13 (7th ed. 1967). Such evidence was clearly inflammatory because of the aura of violence surrounding such an alleged offense and the serious danger it presents to life or property. See generally United States v. Roberts, 18 U.S.C.M.A. 42, 39 C.M.R. 42 (1968); Munster and Larkin, Military Evidence, § 5.3a (2) (2nd ed. 1977). Finally, the offense for which the appellant was convicted at this court-martial was a non-violent act of criminal conversion which paled before the above-described act of criminal misconduct in the civilian community. Cf. United States v. Montgomery, supra. In view of the above and the severe sentence adjudged in this court-martial, our misgivings as to its impact on the members are justified. See generally United States v. Dukes, 5 M.J. 71 (C.M.A.1978). Second, trial counsel compounded the prejudicial error in the present case. He not only made repeated references to this uncharged criminal misconduct in his cross-examination of appellant but chose to make such evidence a cornerstone in his sentencing argument before the members. He stated unabashedly: You have a fire bombing. A premeditated, discussed, rational, striking out at a residence in Clovis, New Mexico with a Molotov cocktail and in an effort to avoid detection; a malicious act, an act which was admitted to you under oath. We submit to you, when considered alone, a¡though it is not charged, it would certainly demand the maximum punishment in this case. But when it’s added to the charge of larceny, and the circumstances surrounding that crime, it demands it. (Emphasis supplied.) This is an open invitation to the court members to punish the appellant at this court-martial for the alleged civilian offense. This is clearly improper and unfair comment by the prosecutor even if the evidence was admissible at court-martial.8 Other references were made in trial counsel’s argument to the effect that this inadmissible evidence demonstrated that the appellant was a “bad person” deserving a severe punishment at this court-martial. Such affirmative exploitation of the inadmissible evidence by trial counsel further convinces us that the appellant was substantially prejudiced during the sentence proceedings by the erroneous admission of this evidence. See generally United States v. Shamberger, 1 M.J. 377 (C.M.A.1976). In closing, we find that the military judge prejudicially erred when he admitted during the sentencing portion of appellant’s court-martial prosecution exhibit 4 which contained evidence of his alleged civilian misconduct. Of course, we are aware that restrictions on the admissibility of evidence have been generally relaxed for the purpose of sentencing after a finding of guilty has been returned. United States v. Mack, supra at 316. Nevertheless, this general policy must be construed in light of the President’s formal decision to utilize a more restricted sentencing procedure in our military justice system than that operating in the federal civilian criminal courts. His [201] rule-making in this matter should not be deliberately frustrated by regulatory artifice or ambiguity, or either’s exploitation by the trial counsel or a commanding officer. See Article 36, UCMJ, 10 U.S.C. § 836. In a similar vein, it must be remembered the sentencing body in the military justice system, as in the present case, may be the lay members of a court-martial rather than a military judge. See United States v. Montgomery, supra at 39, 42 C.M.R. at 231. Cf. ABA Standards, Sentencing Alternatives and Procedures § 1.1. (1968). In such a system of criminal justice, the military judge must act in a manner to ensure the integrity of the court members as impartial and properly informed decision makers. See United States v. Mack, supra at 319; see generally United States v. Graves, 1 M.J. 50 (C.M.A.1975). Such a reality in the military justice system substantially affects the exercise of discretion by the military judge in the array of information he may permit to go before the members on the question of sentencing and in his decision to sua sponte instruct them concerning the permissible use of such evidence. In this light, he should be particularly sensitive to probative dangers which might arise from the admission of uncharged misconduct evidence during the sentence procedure which, though relevant or even admissible, would unduly arouse the members’ hostility or prejudice against an accused. See McCormick on Evidence § 185, pp. 438-41 (2nd ed. 1972).9 No such action was taken by the military judge in appellant’s case. See generally United States v. Milburn, 8 M.J. 110 (C.M.A.1979). The decision of the United States Air Force Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Air Force for submission to that court for reassessment of the sentence or to order a rehearing on sentence. Chief Judge EVERETT concurs. Footnotes [1] The maximum sentence for this offense at a special court-martial was awarded, except a small amount of authorized forfeitures. See para. 15b, Manual for Courts-Martial, United States, 1969 (Revised edition). [2] All references in this opinion to paragraphs are to the July 1978 (change 2) version of AFR 35-32, unless otherwise indicated. [3] Para. 5b(2), AFR 35-32 (Cl) (31 Mar. 1977): “In all cases, UIFs contain the following information as applicable: ... (2) Civil court convictions, or judgments equating to convictions for other than minor civil law infractions.” [4] Para. 5, Contents of UIFs, AFR 35-32 (C2) (July 1978), states: a. UIFs may include, but are not limited to, the Air Force Form 1137, and correspondence or documentation as determined appropriate for file by the member’s immediate commander or higher authority, that substantiates or records: (7) A copy of an administrative letter of reprimand or admonition not pursuant to Article 15, UCMJ or court-martial. [5] Paragraph 75d, Manual, supra, was promulgated by the President in an effort to bring military sentencing procedure in line with the practice in federal civilian courts. See United States v. Johnson, 19 U.S.C.M.A. 464, 42 C.M.R. 66 (1970). Cf. Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised edition, para. 75d. However, his rules of sentencing procedure at courts-martial are still not as broad as those in operation in federal district courts. This may have something to do with the fact that members may sentence at court-martial while a judge sentences in federal district court. Fed.R.Crim.P. 32; United States v. Mack, 9 M.J. 300, 319 (C.M.A.1980). In any event, sentencing in the federal civilian courts is based on statutes not yet found applicable to courts-martial. Compare Smith v. United States, 551 F.2d 1193 (10th Cir. 1977), cert. denied, 434 U.S. 830, 98 S.Ct. 113, 54 L.Ed.2d 90 (1977), with Article 36(a), Uniform Code of Military Justice, 10 U.S.C. § 836(a), and para. 75, Manual, supra. [6] Judge Cook’s dissent suggests that other general regulatory provisions concerning Unfavorable Information Files would permit administrative reprimands to be issued for alleged criminal misconduct in the civilian community and included in this file to lawfully influence a court-martial. See paras. 2 and 9, AFR 35-32. In view of the restrictive nature of paragraph 5b(2), this regulation, interpreted in this way, would be internally inconsistent. Moreover, it is paragraph 75d, Manual, supra, and paragraph 5-13, AFM 111-1 (March 1979) which permit the lawful use of these files at courts-martial and not paragraphs 2 or 9, AFR 35-32. In any event, a normal reading of these provisions indicates that they were not intended to apply to court members in their sentencing function at court-martial: 2. Purpose of UIFs. UIFs provide the commander and other responsible personnel with a repository of substantiated derogatory information concerning the Air Force member’s personal conduct and duty performance which may form the basis for administrative, personnel, or judicial actions against an individual. Commanders should guard against the misuse of the UIF for recording trivial incidents. 9. Access to UIFs. The individual on whom a UIF exists and his or her immediate commander have routine access to the UIF. Personnel requiring access to UIFs in the performance of their official duties, such as Inspector General representatives, Staff Judge Advocates, and other responsible personnel are permitted access as authorized by the Director of Personnel or CBPO chief (see table 1.1, rule 7). UIFs are not furnished to promotion or selection boards. [7] The prosecution also introduced evidence that the appellant received an administrative reprimand in May 1979 for failing to attend course 5 of drivers’ training school. Trial [200] counsel argued that the appellant was a repeated criminal offender. [8] In view of the administrative nature of this evidence as defined in service regulations, its primary relevance for sentencing purposes is to show the appellant’s past record of poor performance and conduct as a member of the Air Force. See generally Section C, paras. 19-23, AFR 35-32. Moreover, under paragraph 76a (2), Manual, supra, evidence of uncharged criminal misconduct, if properly admitted under paragraph 75d. Manual, supra, might arguably be relevant to show the evil disposition or bad character of the appellant for purposes of sentencing. United States v. Worley, 19 U.S.C. M.A. 444, 42 C.M.R. 46 (1970). Trial counsel made no particular reference to the administrative implications of this evidence in his argument before the members. Assuming this evidence was admissible, trial counsel at the very least confused the members as to the remaining permissible use of this evidence and their duty as the sentencing body at this court-martial. The military judge sat mute. [9] See Fed.R.Evid. 403 and Mil.R.Evid. 403.