                                    CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               MULLIGAN, FEBBO, and WOLFE
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                          Specialist HARRY J. CIBOROWSKI
                            United States Army, Appellant

                                       ARMY 20150544

                           Headquarters, 7th Infantry Division
                    Jeffery D. Lippert, Military Judge (arraignment)
                         Sean F. Mangan, Military Judge (trial)
                    Colonel Robert F. Resnick, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Amanda McNeil Williams, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Cormac M. Smith, JA; Captain John Gardella, JA (on brief).


                                       17 January 2017

                                  ----------------------------------
                                   MEMORANDUM OPINION
                                  ----------------------------------

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       Appellant was charged with a single specification of forcible rape in violation
of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012)
[hereinafter UCMJ]. At his general court-martial the government’s evidence
primarily consisted of the victim’s testimony and appellant’s confession. A panel of
enlisted and officer members convicted appellant of the lesser-included Article 120,
UCMJ, offense of sexual assault and sentenced him to a dishonorable discharge,
confinement for three years, and a reduction to the grade of E-1. The convening
authority approved the sentence.
CIBOROWSKI—ARMY 20150544

       On appeal, appellant’s sole assignment of error is that the military judge
abused his discretion in denying the defense motion for mistrial. 1 In this case, the
government introduced into evidence, without objection, a copy of appellant’s
interrogation by law enforcement. The government then proceeded to publish the
video to the panel. As the video was played, at two instances, the defense objected
to references involving a future polygraph examination.

      Military Rule of Evidence [hereinafter Mil. R. Evid.] 707 prohibits the
admission of “the results of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to take, or taking of a
polygraph examination.”

       After a series of Article 39(a), UCMJ, sessions the military judge took several
curative steps. Appellant nonetheless moved for a mistrial. We find the military
judge did not abuse his discretion in denying the motion for a mistrial.

                                  BACKGROUND

      Near the end of a seven-hour interview, appellant confessed that “the sex that
occurred between [appellant and the victim] was not consensual” because
“[appellant’s] actions made her scared and afraid.” Appellant described his actions
as constituting “rape.”

       Rather than introduce only appellant’s inculpatory statements, the government
made the tactical decision to introduce a five-and-a-half-hour portion of the
interrogation. In a proffer to the military judge, the government explained that they
wanted to present to the panel appellant’s contradictory and changing statements
made during the interrogation in order to credit his ultimate admissions. The entire
video was seven hours and forty-eight minutes long. The government’s proffer
stated that they would edit the video to: omit specific instances where the accused
was alone in the interrogation room; delete portions of the interrogation that
involved discussions that were inadmissible under Mil. R. Evid. 412; remove
appellant’s discussion of uncharged misconduct; and, critically here, delete about
one and a half minutes where the appellant discussed the possibility of taking a
polygraph examination. The government’s proffer did not explicitly claim to have
scrubbed the video of all references to or mentions of the possibility of a polygraph
or other objectionable evidence.

      At trial, the government stated that the defense had received several emails
about proposed redactions to the video, but defense had not provided a response.


1
 Appellant’s personal submissions made in accordance with United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), do not merit discussion or relief.



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CIBOROWSKI—ARMY 20150544

Further, the government stated it had provided the defense a final copy of the edited
video two days prior to trial and defense counsel did not voice any objections or
request any additional redactions. The government offered the edited video into
evidence. The military judge admitted the video after determining the defense had
no objection.

                                    A. Strike One.
       During the playing of the video, in response to appellant’s claim of lack of
memory, Special Agent Berry told the accused “Well, if you don’t remember it, the
polygraph will say you are not lying. Because you can’t lie about something you
don’t remember.” Appellant responded, “I got that, but I don’t trust those things
because - - . . . .” The defense objected, and the playing of the video stopped.

       During an Article 39(a), UCMJ, session the defense moved for a mistrial and
in the alternative asked for an abatement so that the government could review the
video to confirm there were no other discussions of polygraphs. The government
agreed to have a paralegal watch the video before it was played to the panel to
“catch” any additional references.

       The military judge denied the motion for a mistrial, but agreed to provide the
panel with a curative instruction. The military judge then warned the government
that in the event of further error he would entertain a defense motion to prohibit the
government’s further presentation of evidence regarding appellant’s confession.

                                    B. Strike Two.
       The government then continued to play the video for the members. The
recording included a statement by appellant offering to take a polygraph. The
military judge entertained a second motion for a mistrial by the defense. While the
military judge denied the defense motion, he crafted a substantial remedy.

       First, the military judge prohibited the government from playing the
remainder of the video. As the government had not yet played the portion of the
video where appellant made inculpatory statements, this was a substantial sanction.
Additionally, this exclusion was only applicable to the government. The military
judge allowed the defense to introduce any exculpatory part of the video that the
defense desired. Second, the military judge directed that the video would not be
provided to the members to consider during deliberations. Third, the military judge
offered the defense additional opportunities to cross-examine SA Berry.

      In formulating his remedy the military judge determined that the danger of
wasted time and confusion caused by the repeated delays in the case outweighed the
probative value of the evidence. The military judge did allow, however, the
government to present appellant’s confession through the testimony of SA Berry.


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CIBOROWSKI—ARMY 20150544


      The military judge later instructed the panel regarding how to weigh the
evidence regarding appellant’s alleged confession. In addition to the two statements
regarding polygraphs, the video and the cross-examination of SA Berry included
discussions of the UCMJ, fingerprinting, DNA evidence, and references to other
witness’s statements. The military judge instructed the panel to disregard that
evidence.

                             LAW AND DISCUSSION

       The five-and-a-half-hour video was admitted into evidence without defense
objection. Thus, appellant forfeited the right to object to any material contained in
the video. At trial, and on appeal, appellant appears to argue that he relied on the
government to excise any inadmissible portions of the video. However, the
government only promised to redact certain segments which were specifically
identified by time stamp.

       This case presents a bipartite failure of the adversarial system. 2 Defense
counsel, provided with a video that the trial counsel intended to offer, had a duty to
review the video and offer any objection. That the video contained hours of
appellant’s exculpatory statements–which perhaps played into the defense theory of
the case–did not lessen the obligation to object to portions of the video that were
inadmissible and prejudicial to appellant. The trial counsel, upon making the
tactical decision to have the panel watch five and a half hours of video, similarly had
a duty to ensure that the government’s evidence was free from clearly inadmissible
material.

      There are multiple legal theories with which we could address the issue this
case presents. However, whether viewed as an issue of ineffective assistance of
counsel for not objecting to the admission of the video, 3 prosecutorial misconduct


2
  Consider, that the only reason the defense objected to the evidence at all was
because the government opted to publish the entire video in open court. In other
words, it is likely that any issue regarding polygraphs would have gone unnoticed if
the members had reviewed the evidence only during deliberations.
3
  Appellant does not allege that his counsel was ineffective for failing to object to
the admission of a video that contained references to polygraphs. Under Strickland
v. Washington, it is appellant’s burden on appeal to establish both the deficient
performance by counsel and prejudice. 466 U.S. 668, 692 (1984) (“. . . any
deficiencies in counsel’s performance must be prejudicial to the defense in order to
constitute ineffective assistance of counsel.”).




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CIBOROWSKI—ARMY 20150544

for offering a video with clearly objectionable material, plain error by the military
judge for admitting the video, 4 or abuse of discretion by the military judge for
denying the motion for a mistrial, ultimately, we can decide this case based on the
lack of prejudice to appellant. Accordingly, we will address the issue as it was
assigned: whether the military judge abused his discretion in denying the defense
motion for a mistrial. The military judge’s determination was as follows:

             The law regarding this trial as contained in the Court of
             Military Appeals, 1990 decision of U.S. v. Raschats
             [sic][United States v. Rushatz, 31 M.J. 450, 456 (C.A.A.F.
             1990)], suggests or reminds the court judges that - - and [a
             mistrial] is a dramatic remedy used for on [sic] the most
             extreme circumstances, and not as Defense is suggesting
             in its argument, the only remedy before the court. The
             Court of Appeals for the Armed Forces 1999 decision of
             Behrens [sic][United States v. Barron, 52 M.J. 1, 4
             (C.A.A.F. 1999)] says [a mistrial] should only be done, as
             defense correctly quotes, in circumstances that arise that
             casts substantial doubt upon the fairness and impartiality
             of the trial. In my analysis of the legal standards and the
             facts in the case, and considering the totality of the
             evidence presented so far in the case and my ability to
             observe the members and the witnesses in the courtroom[,]
             I find that such circumstances have not arisen and,
             therefore, I am denying the defense motion for a mistrial.

       We review the military judge’s decision for an abuse of discretion. “The
decision to grant a mistrial lies within the discretion of the military judge; an
appellate court must not reverse the decision absent clear evidence of abuse of that
discretion.” United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000). Indeed, the
remedy taken by this military judge is the “preferred remedy for correcting error
when the court members have heard inadmissible evidence.” Id.

       Here, we agree with the military judge that a curative instruction (combined
with prohibiting the government from further presenting evidence of the video) was
a sufficient remedy.




4
  When a video is admitted without objection, we cannot fault the military judge for
not viewing the entire exhibit before admitting it. Accordingly, we do not find that
the military judge committed plain error.




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CIBOROWSKI—ARMY 20150544

       In general, evidence regarding polygraphs is inadmissible under Mil. R. Evid.
707. However, the key question here is not so much was the evidence admissible,
but rather to what extent was appellant prejudiced by its initial admission.

       Evidence that a witness passed or failed a polygraph may often be highly
prejudicial because it invites the factfinders to substitute their own credibility
determination for that of the polygraph machine. Evidence that a witness refused (as
is more often the case) to take a polygraph is likewise often prejudicial because it
invites the factfinder to infer that only a deceitful witness would refuse a polygraph.
Because of its specific prohibition in the rules and its potential for being highly
prejudicial, evidence concerning polygraphs has been treated as court-martial
kryptonite. However, to say that evidence concerning polygraphs is often
prejudicial is not to say it must always be so. The devil is in the details.

       Here, the panel heard two references to polygraphs. 5 In the first, SA Berry
told the accused that a polygraph would reveal whether he was being truthful. In the
second, appellant offered to take a polygraph. On balance, and taken in the context
of the entire trial, neither was obviously prejudicial. For example, the latter
instance where appellant offered to take a polygraph is more easily read as revealing
that appellant had nothing to hide. 6 That is, it had the likely effect of bolstering
appellant’s credibility.

       Moreover, our role on appeal is not to stand in the shoes of the military judge.
“The abuse of discretion standard calls for more than a mere difference of opinion.”
United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014). That is, we give the
military judge deference, especially when, as here, his decision is based in part on
his specific observations of the “members and the witnesses in the courtroom. . . .”


5
  That the panel actually heard the references to polygraphs and understood their
context is unclear. The record demonstrates that the reference to polygraphs passed
unnoticed by some of the parties. In summarizing the R.C.M. 802 session the
military judge noted that it took “several minutes of searching [the audio]. . . to find
and understand exactly what was said . . . .” The military judge later found as fact
that “[t]he comment was brief,” that “it was heard by only one member of the two
member defense team,” and that “the time it took to find it was difficult only
because it was a short comment.” To the extent that a reference to polygraphs was
fleeting, it lessens the possibility that appellant was prejudiced.
6
  In his brief, appellant does articulate possible prejudice from his offer to take a
polygraph. First, he assumes that the panel would infer that a polygraph had taken
place. Next, he claims that the panel would infer that he failed the polygraph
because the charges were referred to court-martial. This articulation of prejudice
requires inference upon inference.



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CIBOROWSKI—ARMY 20150544

       Accordingly, we find the military judge did not abuse his discretion in
denying the defense motion for mistrial. See United States v. Doctor, No.
201300187, 2014 CCA Lexis 192, at *10 (N-M. Ct. Crim. App. 27 Mar. 2014)
(finding the military judge did not err in denying a motion for mistrial when
evidence of an offer and agreement to take a polygraph was mistakenly put in front
of the panel).

                                  CONCLUSION

        The findings and sentence are AFFIRMED. 7

        Senior Judge MULLIGAN and Judge FEBBO concur.

                                      FOR THE COURT:




                                      MALCOLM H. SQUIRES, JR.
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
                                      Clerk of Court




7
    Corrected



                                         7
