                       UNITED STATES, Appellee

                                    v.

                 Kim H. CARRUTHERS, Staff Sergeant
                        U.S. Army, Appellant

                              No. 06-0050

                       Crim. App. No. 20010700

       United States Court of Appeals for the Armed Forces

                       Argued November 29, 2006

                       Decided January 31, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                 Counsel

For Appellant: Captain Kathleena R. Scarpato (argued);
Lieutenant Colonel Steven C. Henricks, Lieutenant Colonel
Kirsten V. C. Brunson, Major Billy B. Ruhling II, and Captain
Amy S. Fitzgibbons (on brief); Captain Doug J. Choi.

For Appellee: Captain W. Todd Kuchenthal (argued); Colonel John
W. Miller II, Lieutenant Colonel Michele B. Shields, and Major
Tami L. Dillahunt (on brief); Lieutenant Colonel Mary M. Foreman
and Captain Edward E. Wiggers.

Military Judges: Patrick J. Parrish (arraignment) and Jeffrey
D. Smith (trial).

       This opinion is subject to revision before final publication.
United States v. Carruthers, No. 06-0050/AR

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Kim H. Carruthers was charged with one

specification of conspiracy and multiple specifications of

larceny of military property in violation of Articles 81 and

121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881,

921 (2000).   Carruthers entered pleas of not guilty to the

charges but was convicted by a general court-martial composed of

officer and enlisted members.   He was sentenced to a bad-conduct

discharge, confinement for four years, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.    The

sentence was approved by the convening authority and the United

States Army Court of Criminal Appeals affirmed the findings and

sentence in an unpublished per curiam opinion.   United States v.

Carruthers, No. ARMY 20010700 (A. Ct. Crim. App. Sept. 20,

2005).

     The Sixth Amendment guarantees an accused’s right “to be

confronted with the witnesses against him.”   U.S. Const. amend.

VI; see also Douglas v. Alabama, 380 U.S. 415, 418 (1965);

United States v. McGrath, 39 M.J. 158, 161-62 (C.M.A. 1994).     An

important function of this constitutionally protected right is

to provide the defense an opportunity to expose the possible

interests, motives, and biases of prosecution witnesses.   Davis

v. Alaska, 415 U.S. 308, 316 (1974); Military Rules of Evidence

(M.R.E.) 608(c).



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United States v. Carruthers, No. 06-0050/AR

       It does not follow, of course, that the Confrontation
       Clause of the Sixth Amendment prevents a trial judge from
       imposing any limits on defense counsel’s inquiry into the
       potential bias of a prosecution witness. On the contrary,
       trial judges retain wide latitude insofar as the
       Confrontation Clause is concerned to impose reasonable
       limits on such cross-examination based on concerns about,
       among other things, harassment, prejudice, confusion of the
       issues, the witness’ safety, or interrogation that is
       repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States

v. James, 61 M.J. 132, 134-35 (C.A.A.F. 2005); M.R.E. 403.      The

military judge may restrict cross-examination when the probative

value of the evidence sought would be “substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or

misleading the members.”     M.R.E. 403.

       We granted review in this case to determine whether

Carruthers was denied his Sixth Amendment right to confrontation

when the military judge limited cross-examination of a key

Government witness regarding the possible sentence under the

witness’s plea agreement.1    We also granted review to determine




1
    In Issue I we granted review of the following:

       WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT
       TO CONFRONTATION WHEN THE MILITARY JUDGE IMPERMISSIBLY
       RESTRICTED CROSS-EXAMINATION OF A KEY GOVERNMENT
       WITNESS REGARDING THE DETAILS OF A CO-CONSPIRATOR’S
       EXTREMELY FAVORABLE PLEA AGREEMENT.

64 M.J. 76 (C.A.A.F. 2006).



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United States v. Carruthers, No. 06-0050/AR

whether the military judge erred by failing to issue a leniency

instruction to the members as requested by the defense.2

                             BACKGROUND

       During a three-year period while stationed at Fort Bragg,

North Carolina, Carruthers stole over one million dollars worth

of military property from the Defense Reutilization and

Marketing Office (DRMO), including trucks, all-terrain vehicles,

vehicle parts, clothing, electronic equipment, and other items.

Carruthers used forged requisition orders purporting to request

supplies for his unit to obtain access to the DRMO from which he

transported stolen property to an off-base storage facility.     He

also sold and gave items he had stolen to civilians and military

personnel, including his coconspirators.    Further facts relevant

to each issue will be set forth below.

      Cross-Examination of Sergeant First Class (SFC) Rafferty

                             Background

       At trial, one of Carruthers’ coconspirators, SFC Paul

Rafferty, testified for the Government.    Rafferty had entered a

pretrial agreement to plead guilty in federal district court to

one count of larceny of over $1,000 of government property.      At


2
    In Issue II we granted review of the following:

       WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
       REFUSING TO GIVE A MANDATORY LENIENCY INSTRUCTION.

Id.



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United States v. Carruthers, No. 06-0050/AR

the time of Carruthers’ court-martial, Rafferty had not yet been

charged by federal officials.   Carruthers’ civilian defense

counsel (CDC) cross-examined Rafferty extensively about the

terms and effect of this pretrial agreement:

     [CDC]: You knew, by not going to a court-martial, that you
     wouldn’t be subjected to a punitive discharge which is –-
     could cost you your career and your retirement; isn’t that
     right?

     [Rafferty]:    Yes, sir.

     [CDC]: Do you also know that, if and when you are
     convicted by the federal authorities, that you could still
     be administratively discharged and receive an other than
     honorable discharge? Do you realize that?

     [Rafferty]:    Yes, sir.

     [CDC]: But the government hasn’t processed you for an
     administrative discharge, have they?

     [Rafferty]:    No, sir.

     [CDC]: You don’t know whether they’re intending to do that
     either, do you?

     [Rafferty]:    No, sir.

     [CDC]:   In fact, that hasn’t been discussed, has it?

     [Rafferty]:    No, sir.

     [CDC]: In fact, wouldn’t you agree that a lot of what
     happens with you after this court-martial could depend on
     your testimony at trial?

     [Rafferty]:    Yes, sir.

     [CDC]: If you do a good job for the government, they’re
     going to help take care of you; isn’t that right?

     [Rafferty]:    Yes, sir.

          . . . .




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United States v. Carruthers, No. 06-0050/AR

     [CDC]: Now isn’t it true that, in the plea agreement, it
     says that, “if the defendant provides false, incomplete or
     misleading information or testimony, that would constitute
     a breach of this agreement by the defendant, and the
     defendant shall be subject to prosecution for any federal
     criminal violation. Any information provided by the
     defendant may be used against the defendant in such
     prosecution”? Isn’t it true that, if for some reason
     there’s an indication that you don’t provide accurate
     information here at court, that this plea agreement can be
     revoked? Isn’t that right?

     [Rafferty]:    Yes, sir.

     [CDC]: Wouldn’t it be real important for you to testify
     today consistently with how you told investigators all this
     happened? Would you agree with that?

     [Rafferty]:    Yes, sir.

     [CDC]: ‘Cause, if you didn’t, then certainly it could be
     indicated that you were providing some false or misleading
     information; isn’t that right?

     [Rafferty]:    Yes, sir.

          . . . .

     [CDC]: One count of theft of public property over $1,000,
     and that’s it?

     [Rafferty]:    Yes, sir.

     [CDC]: One count -- your understanding is that you’re
     going to be charged with one count, even though -– well,
     let me ask you, how many times would you say you actually
     took possession of property from DRMO with the intent to
     steal? How many times did you do that and walk away from
     DRMO?

     [Rafferty]:    I couldn’t even remember the count, sir.   A
     lot.

     [CDC]:   A lot, correct?

     [Rafferty]:    Yes, sir.

     [CDC]: In fact, you understand, don’t you, there’s a good
     possibility that you may just get some suspended ----



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United States v. Carruthers, No. 06-0050/AR

     [Trial Counsel]:   Objection.

     In an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000),

session with the military judge, the Government objected to the

defense’s questions about Rafferty’s potential sentence as being

improper for the panel to consider before a finding of guilt.

Defense counsel responded that testimony about Rafferty’s

potential maximum punishment would be important to show his

motive for testifying and that if he could not be cross-examined

on this point, the agreement itself should be entered into

evidence.   The defense counsel did not, however, explain what

special significance the maximum punishment in the plea

agreement had in motivating the witness’s testimony as compared

to other aspects of the pretrial negotiation.   The military

judge sustained the objection and did not permit further

questions or other evidence as to the specifics of the plea

agreement, stating:

     I feel that it’s just not relevant; and, even if it is, I
     find, under [M.R.E.] 403, the probative value is
     substantially outweighed by the danger of misleading the
     members. That said, counsel, if you want to go back and
     find some case law on this point that indicates that --
     specific to the plea bargain, that has not already been
     brought out -- should go before the members, then please
     bring that to my attention; and, if you can point to me
     some case law on point, then I’ll allow you to recall
     Sergeant First Class Rafferty and bring that out. At this
     point, to me, you’ve made your point, Mr. Dunn, that
     Sergeant First Class Rafferty has a plea bargain with the
     US Attorney’s Office, which means that he will be tried in
     US District Court, not at a court-martial; that he would
     not be subject to the potential penalty of a punitive
     discharge. I think that point has clearly been made. I


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United States v. Carruthers, No. 06-0050/AR

        think that’s really what you’re driving at. You’re driving
        at the different potential penalties. From what I hear you
        saying and my view of the way you’ve approached this is to
        try to point out and to lay the foundation so that, if we
        do get to sentencing, that issue of a punitive discharge is
        obviously very important to you and to Staff Sergeant
        Carruthers.

        The military judge asked if there were further questions or

objections and hearing none, recalled the members.    Under

further cross-examination Rafferty again confirmed that his own

treatment by the Government could depend on his performance as a

witness against Carruthers and that the Army had not yet taken

any adverse administrative action against him.

                              Discussion

        Carruthers argues that the defense should have been

permitted to bring to light the sentencing details of Rafferty’s

pretrial agreement because the possibility Rafferty would

receive a substantially reduced sentence in exchange for his

cooperation with the Government provided “a clear motive to

lie.”    Carruthers disputes the military judge’s conclusion that

testimony about Rafferty’s possible sentence was irrelevant and

argues that the military judge’s second ground for exclusion --

the danger that the evidence would mislead the members -- could

have been remedied by a curative instruction.

        The Government responds that defense counsel had already

elicited many details of the plea bargain from Rafferty,

including that he was not facing a court-martial, that he was



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United States v. Carruthers, No. 06-0050/AR

doing everything he could to avoid a punitive discharge, and

that the leniency he expected to receive depended on his

performance as a witness against Carruthers.

     In James, 61 M.J. at 134, this court reiterated its

adherence to the standard set forth by the Supreme Court in Van

Arsdall for evaluating a trial judge’s limitation of inquiry

into potential bias on cross-examination:

     [W]e have recognized that the exposure of a witness’
     motivation in testifying is a proper and important function
     of the constitutionally protected right of cross-
     examination. It does not follow, of course, that the
     Confrontation Clause of the Sixth Amendment prevents a
     trial judge from imposing any limits on defense counsel’s
     inquiry into the potential bias of a prosecution witness.
     On the contrary, trial judges retain wide latitude insofar
     as the Confrontation Clause is concerned to impose
     reasonable limits on such cross-examination based on
     concerns about, among other things, harassment, prejudice,
     confusion of the issues, the witness’ safety, or
     interrogation that is repetitive or only marginally
     relevant.

Id. at 134-35 (citing Van Arsdall, 475 U.S. at 678-79) (citation

and quotation marks omitted).

     In light of this “wide latitude,” a military judge’s

decision to limit cross-examination as to the sentencing details

of a prosecution witness’s plea agreement is reviewed for abuse

of discretion.   Id. at 136; United States v. Jones, 49 M.J. 85,

88 (C.A.A.F. 1998).   However, this court has held that the

military judge’s discretionary authority arises only after

“‘there has been permitted as a matter of right sufficient




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United States v. Carruthers, No. 06-0050/AR

cross-examination.’”   Jones, 49 M.J. at 188 (quoting United

States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir. 1983)).

     Defense counsel engaged Rafferty in a lengthy cross-

examination, during which he admitted:   (1) that his plea

agreement could get him out of a court-martial and punitive

discharge; (2) that the Government would “take care of him” if

he were to “do a good job” at trial; (3) that his story at trial

would have to be consistent with what he told investigators; and

(4) that he would only be charged with one count of larceny in

federal district court despite having stolen property on “a lot”

of occasions.   We conclude that the military judge permitted

sufficient cross-examination of Rafferty.

     Having permitted defense counsel’s cross-examination to

bring to light Rafferty’s possible motive to testify falsely,

the military judge then properly conducted an M.R.E. 403

balancing test on the record.   He was not persuaded that the

sentencing details of the pretrial agreement had any special

relevance to Rafferty’s motive in testifying beyond that already

elicited.   He concluded that even if the terms of the pretrial

agreement were relevant, the probative value of further inquiry

into Rafferty’s possible sentence under the plea agreement was

substantially outweighed by the possibility that such testimony

would mislead the members.   We defer to the military judge’s on-




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United States v. Carruthers, No. 06-0050/AR

record application of M.R.E. 403 to the facts of this case.

United States v. James, 63 M.J. 217, 222 (C.A.A.F. 2006).

     The military judge did not deny the defense the right to

examine the possibility of bias, but rather simply limited its

ability to inquire about yet another aspect of the plea

agreement, when the agreement’s bearing on bias had already been

thoroughly explored.   As we held in James, “once the defendant

has been allowed to expose a witness’s motivation in testifying,

‘it is of peripheral concern to the Sixth Amendment how much

opportunity defense counsel gets to hammer that point home to

the jury.’”   61 M.J. at 136 (quoting United States v. Nelson, 39

F.3d 705, 708 (7th Cir. 1994)).    Here, the military judge

correctly determined that defense counsel’s cross-examination

had brought to light Rafferty’s possible motive to lie, such

that further inquiry into his sentence would have been

marginally relevant at best and potentially misleading.    Since

“sufficient cross-examination” had been permitted and the

military judge properly identified and weighed the danger of

misleading the members under M.R.E. 403, we find no abuse of

discretion and need not reach the question of prejudice.

                       Leniency Instruction

                            Background

     During an Article 39(a), UCMJ, session prior to instructing

the members, the military judge explained his proposed findings



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United States v. Carruthers, No. 06-0050/AR

instructions to the parties and asked whether there were any

objections or proposed modifications from the parties.    The

defense did not object to the military judge’s proposed

accomplice instruction and stated that it had no other issues

with the proposed instructions.    Later, however, the defense

submitted a request for the following tailored leniency

instruction:

     TESTIMONY OF A WITNESS WITH A REDUCED SENTENCE

     There is evidence and indeed it is not in dispute and all
     the evidence shows that SFC Paul Rafferty and Robert Nunes
     testified under an agreement with the Government to give
     truthful testimony in any proceeding when requested by the
     government in order to have their charges and sentences
     reduced. It is uncontroverted that SFC Paul Rafferty and
     Robert Nunes testified in whole or in part for this reason.
     You should therefore examine SFC Paul Rafferty’s and Robert
     Nunes’s testimony with great care and caution in deciding
     whether or not to believe it. If, after doing so, you
     believe their testimony, in whole or in part, you should
     treat what you believe the same as any other believable
     evidence.

The military judge declined to give this instruction, stating he

believed “the standard benchbook instruction is adequate.”      He

issued the following instruction dealing with the testimony of

Carruthers’ alleged accomplices:

          A witness is an accomplice if he was criminally
     involved in an offense with which the accused is charged.
     The purpose of this advice is to call to your attention a
     factor specifically affecting the witness’ believability;
     that is, a motive to falsify his testimony in whole or in
     part, because of an obvious self-interest under the
     circumstances.

          For example, an accomplice may be motivated to falsify
     testimony in whole or in part because of his own self-


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United States v. Carruthers, No. 06-0050/AR

      interest in receiving immunity from prosecution or leniency
      in a forthcoming prosecution.

           The testimony of an accomplice, even though it may be
      corroborated and apparently credible, is of questionable
      integrity and should be considered by you with great
      caution.

           In deciding the believability of Sergeant First Class
      Paul Rafferty, Mr. Grandy Hooper, Mr. Bob Nunes, Mr. Paul
      Morgan, and Mr. Jerry Roach, you should consider all the
      relevant evidence in this case and the extent to which
      their respective testimony is either corroborated or
      contradicted by other evidence in this case.

           Whether Sergeant First Class Rafferty, Mr. Hooper, Mr.
      Nunes, Mr. Morgan and/or Mr. Roach were accomplices is a
      question for you to decide. If those individuals shared
      the criminal intent or purpose of the accused, if any, or
      aided, encouraged, or in any other way criminally
      associated or involved themselves with the offenses with
      which the accused is charged, they would be an accomplice
      whose testimony must be considered with great caution.

This instruction is substantially similar to the “Accomplice

Testimony” sample instruction in the Dep’t of the Army, Pamphlet

27-9, Legal Services, Military Judges’ Benchbook ch. 7, para. 7-

10 (2000) [hereinafter Benchbook].   The Benchbook contains

another sample instruction on “witness[es] testifying under a

grant of immunity or promise of leniency,” but the military

judge did not issue that instruction.    Benchbook ch. 7, para. 7-

19.

                            Discussion

      “While counsel may request specific instructions from the

military judge, the judge has substantial discretionary power in

deciding on the instructions to give.”   United States v.



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United States v. Carruthers, No. 06-0050/AR

Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (citing United

States v. Smith, 34 M.J. 200 (C.M.A. 1992)); Rules for Courts-

Martial 920(c) Discussion.    Thus the military judge’s denial of

a requested instruction is reviewed for abuse of discretion.

Damatta-Olivera, 37 M.J. at 478; United States v. Rasnick, 58

M.J. 9, 10 (C.A.A.F. 2003).   “We apply a three-pronged test to

determine whether the failure to give a requested instruction is

error: ‘(1) [the requested instruction] is correct; (2) it is

not substantially covered in the main [instruction]; and (3) it

is on such a vital point in the case that the failure to give it

deprived [the accused] of a defense or seriously impaired its

effective presentation.’”    United States v. Gibson, 58 M.J. 1, 7

(C.A.A.F. 2003) (quoting Damatta-Olivera, 37 M.J. at 478)

(citation and quotation marks omitted).

     Carruthers argues that the defense requested leniency

instruction should have been issued under Gibson, but even if

the military judge was right to deny it, he should have issued

another instruction on leniency in addition to the accomplice

instruction that was given.   That instruction could either have

been a modified version of the defense requested instruction or

the “standard instruction” on leniency from the Benchbook ch. 7,

para. 7-19.   Carruthers maintains that the military judge

promised to give the Benchbook leniency instruction when he

stated that he found that “the standard benchbook instruction is



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United States v. Carruthers, No. 06-0050/AR

adequate.”   The Government responds that the defense requested

instruction does not meet any of the three Gibson requirements.

     Applying the first Gibson requirement to the facts of this

case, we observe that the overall thrust of the defense

requested instruction was correct.    The two witnesses mentioned,

Rafferty and coconspirator Robert Nunes, did testify in exchange

for “deals” with the Government.     Nonetheless, as Carruthers

concedes, the wording of the defense requested instruction was

“substantially more favorable to the defense” than the sample

leniency instructions in the Benchbook.     While the military

judge could have modified this instruction to bring it in line

with the sample instructions’ more neutral tone, he was not

required to do so.

     Under the second Gibson requirement, we must determine

whether the proffered leniency instruction was “substantially

covered” in the military judge’s instruction on accomplice

testimony.   The instruction given by the military judge

identified Rafferty and Nunes along with three other witnesses

and instructed the members to consider all relevant evidence to

decide whether they were accomplices, and to accordingly

evaluate their credibility.   Describing accomplice testimony,

the instruction called the panel’s attention to “a factor

specifically affecting the witness’ believability; that is, a

motive to falsify his testimony in whole or in part, because of



                                15
United States v. Carruthers, No. 06-0050/AR

an obvious self-interest under the circumstances.”   The

instruction also stated that the accomplices’ interests may

include “receiving immunity from prosecution or leniency in a

forthcoming prosecution,” and that their testimony, “even though

it may be corroborated and apparently credible, is of

questionable integrity and should be considered by you with

great caution.”

     In Damatta-Olivera, this court found “substantial coverage”

when a military judge’s instructions on accomplice testimony

“adequately addressed” the accomplice’s credibility, which was

the issue underlying the defense’s requested instruction.    37

M.J. at 487-79.   Similarily, in United States v. Poole, 47 M.J.

17, 19 (C.A.A.F. 1997), we found that a military judge’s

instruction on resistance to apprehension, which named

aggravated assault as a lesser included offense, “substantially

covered” the defense requested instruction on “mere flight,”

even though it did not mention “mere flight” as a defense.

     We hold that the instructions in this case “substantially

covered” the leniency offered Rafferty and Nunes and addressed

their possible motives to lie as a result of their favorable

pretrial agreements.   Although it would have been better to give

the Benchbook leniency instruction once the issue was raised,

the military judge did not err because the instruction he gave




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United States v. Carruthers, No. 06-0050/AR

covered its “critical principles.”      United States v. Bigelow, 57

M.J. 64, 67-68 (C.A.A.F. 2002).

     Moreover, Carruthers’ claim that the military judge agreed

to issue the “standard instruction” on leniency mischaracterizes

the record.   The defense was given the opportunity to review the

military judge’s planned instructions, which included neither

the defense requested instruction nor the Benchbook leniency

instruction, and did not object.       See United States v. Gay, 16

M.J. 475, 477-78 (C.M.A. 1983) (holding that military judge’s

instruction on reasonable doubt “substantially covered” defense

requested instruction when defense did not object or request

additional instruction).    Later, after the defense submitted its

requested instruction, the military judge stated that while he

had considered it, he believed “the standard benchbook

instruction is adequate.”   Given that the instruction he

actually issued was substantially similar to the sample

instruction on accomplice testimony from the Benchbook ch. 7,

para. 7-10, there is no reason to believe the military judge was

referring to an instruction other than the one he actually gave.

The Benchbook leniency instruction was neither requested by the

defense nor mentioned by the military judge as an instruction he

was considering.   Carruthers’ contention that the military judge

had agreed to issue the Benchbook leniency instruction lacks

support in the record.



                                  17
United States v. Carruthers, No. 06-0050/AR

     Finally, applying the third Gibson requirement, we find

that without the requested instruction Carruthers was neither

deprived of a defense nor seriously impaired in his ability to

present a defense.   Defense counsel’s cross-examination of

Rafferty clearly elicited his possible bias.   It revealed

Rafferty’s interest in avoiding a court-martial and punitive

discharge, his desire to “do a good job” at trial so the

Government would “take care of [him],” including his motive to

testify consistently with what he told investigators, and the

fact that he would only be charged with one count of larceny in

federal district court despite having stolen property on “a lot”

of occasions.

     Likewise, Nunes testified that he had not yet been charged,

that he had avoided “adverse administrative action,” and that he

was testifying against Carruthers “in exchange for leniency in

federal court,” which “would give [him] ample reason to

cooperate with the government.”    After the military judge

instructed the members on the strong motive of accomplices to

lie when testifying in exchange for deals with the prosecution,

the defense argued in its closing that the evidence provided by

Rafferty and Nunes was not credible precisely because they were

getting a “deal” for “lenient treatment.”   The defense was not

denied the ability to attack the credibility of prosecution

witnesses testifying in exchange for leniency.



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United States v. Carruthers, No. 06-0050/AR

                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                               19
