                        UNITED STATES, Appellee

                                     v.

                Antoinette E. JOHNSON, Senior Airman
                      U.S. Air Force, Appellant


                               No. 04-0611

                          Crim. App. No. 34889


       United States Court of Appeals for the Armed Forces


                          Argued March 1, 2005

                          Decided July 8, 2005


CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and BAKER and ERDMANN, JJ., joined. EFFRON, J.,
filed a separate dissenting opinion.



                                  Counsel

For Appellant: Colonel Carlos L. McDade (argued); Major Terry
L. McElyea, Major James M. Winner, and Major Sandra K.
Whittington (on brief).

For Appellee: Major John C. Johnson (argued); Lieutenant
Colonel Robert D. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).

Military Judge:    Rodger A. Drew Jr.




  THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Johnson, No. 04-0611/AF


     Judge CRAWFORD delivered the opinion of the Court.

     Contrary to her pleas, Appellant was convicted by a general

court-martial of officer and enlisted members of two

specifications of assault consummated by battery, one

specification of assault on a security forces member in the

execution of her duties, and two specifications of assault with

intent to commit voluntary manslaughter, in violation of

Articles 128 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 128, 134 (2000), respectively.   The convening

authority approved the adjudged sentence of confinement for

fourteen years, forfeiture of all pay and allowances, reduction

to E-1, and a dishonorable discharge.

     The United States Air Force Court of Criminal Appeals found

both the findings and sentence correct in law and fact, but

reduced the confinement to ten years.    United States v. Johnson,

No. ACM 34889, 2004 CCA LEXIS 133, 2004 WL 1238955 (A.F. Ct.

Crim. App. May 21, 2004).   On November 16, 2004, this Court

granted review of the following issue:

     WHETHER THE LOWER COURT AND MILITARY JUDGE ERRED IN
     DENYING THE DEFENSE MOTION FOR A NEW TRIAL.

     For the reasons discussed below, we hold that neither the

military judge nor the Court of Criminal Appeals erred, and we

affirm.




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United States v. Johnson, No. 04-0611/AF


                              FACTS

     We accept and incorporate the lengthy but critical factual

account of the court below:

          The appellant was stationed at Spangdahlem Air
     Base, Germany, and assigned to the 52d Equipment
     Maintenance Squadron. She met Airman First Class
     (A1C) Amy Wheeler, a security forces member, and they
     began a lesbian relationship that lasted about one
     year. The relationship was turbulent, resulting in
     arguments and physical confrontations. When A1C
     Wheeler tried to end the relationship in January 2000,
     the appellant took an overdose of pills in an apparent
     suicidal gesture. Thereafter, they resumed their
     relationship.

          A1C Wheeler served at a deployed location between
     May and September 2000. Upon her return, A1C Wheeler
     broke off the affair with the appellant. In late
     September 2000, A1C Wheeler met Airman (Amn) Nichole
     Wesolowski, another security forces member, and they
     became friends. The appellant suspected that A1C
     Wheeler was romantically involved with Amn Wesolowski,
     and was jealous and angry. This led to the two
     incidents that formed the basis for the charges in
     this case.

          The first incident occurred in A1C Wheeler’s
     dormitory room in late September or early October
     2000. The appellant was upset about A1C Wheeler’s
     relationship with Amn Wesolowski. They argued and the
     appellant choked A1C Wheeler. This incident formed
     the basis for one specification of assault consummated
     by a battery on A1C Wheeler.

          The appellant made another suicidal gesture in
     October 2000. A1C Wheeler found her when she returned
     a vehicle to the appellant’s home and got medical
     assistance. As a result, the appellant faced
     administrative discharge from the Air Force.

          The second incident occurred at the armory in the
     early morning hours of 21 October 2000. Amn
     Wesolowski was visiting A1C Wheeler, who was on duty
     as the armorer for the security forces squadron,
     responsible for safeguarding and issuing small arms.

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United States v. Johnson, No. 04-0611/AF


     The appellant called A1C Wheeler and they argued. The
     appellant went to the armory, and a physical
     altercation ensued between the appellant, A1C Wheeler,
     and Amn Wesolowski. The appellant attempted to take
     A1C Wheeler’s handgun but was unsuccessful. She then
     seized a handgun from the storage racks, inserted a
     loaded magazine, chambered a round, and pointed the
     weapon at A1C Wheeler and Amn Wesolowski. A1C Wheeler
     aimed her service weapon at the appellant and warned
     her repeatedly to drop the gun. The appellant did not
     comply. A1C Wheeler shot the appellant in the leg,
     incapacitating her.

          . . . .

          At the outset of the trial, it was apparent that
     the relationships between the appellant, A1C Wheeler,
     and Amn Wesolowski would be matters of concern. The
     government acknowledged that the nature of the
     relationship between A1C Wheeler and the appellant
     would be relevant, but moved to keep out evidence of
     specific acts, to which the defense agreed. The
     government also moved to exclude evidence of the
     relationship between A1C Wheeler and Amn Wesolowski.
     The defense maintained that it was relevant and
     necessary to show bias under Mil. R. Evid. 608(c).
     The military judge agreed, and allowed the defense to
     explore the nature of the relationship generally.

          The evidence presented at trial included
     testimony about these relationships. A1C Wheeler
     testified about her lesbian relationship with the
     appellant and the disputes between them. The cross-
     examination of A1C Wheeler focused on her lesbian
     affair with the appellant. The trial defense counsel
     asked A1C Wheeler if she started dating Amn Wesolowski
     “right after the incident at the armory,” but she
     denied it. A1C Wheeler denied kissing Amn Wesolowski,
     but explained that Amn Wesolowski tried to kiss her;
     she demurred and Amn Wesolowski kissed her on the
     cheek. She admitted that she and Amn Wesolowski had
     changed dormitory rooms to share adjoining rooms after
     the incident. Trial defense counsel’s cross-
     examination challenged Amn Wheeler extensively about
     false statements to investigators about her lesbian
     relationship, and alleged inconsistencies in her prior
     statements. The defense called as a witness A1C
     Jessica Ackerman, a security forces investigator, who

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United States v. Johnson, No. 04-0611/AF


     related that Amn Wesolowski said she had started
     dating A1C Wheeler shortly after the armory incident.

          Both parties rested on 4 May 2001. Due to
     conflicting commitments, the trial judge recessed the
     trial for three weeks. The proceeding resumed with
     oral arguments on findings on 29 May 2001.

          During the recess, Air Force investigators looked
     into an allegation that A1C Wheeler had stolen a
     television belonging to the appellant. During the
     previous summer, the appellant agreed to purchase a
     television from another airman for $200.00. Delivery
     was an issue, because of conflicting leave and
     deployment schedules. They worked out an arrangement
     where the appellant mailed her check to the seller,
     who cashed it. Just before deploying, the seller left
     a note and his room key, inviting A1C Wheeler or the
     appellant to get the television from his room. When
     he returned in December, the television was gone and
     the key was returned, so the seller assumed all was in
     order. By then, the appellant was in pretrial
     confinement resulting from the incident at the armory.
     While making arrangements to store her property, the
     appellant realized the television was missing, and
     reported it stolen. On 10 May 2001, the investigators
     questioned A1C Wheeler about the missing television.
     She made a written statement denying any knowledge of
     its location.

          Trial resumed on 29 May 2001 with arguments on
     findings. The court-martial found the appellant
     guilty as noted above, and the sentencing hearing
     followed. Both A1C Wheeler and Amn Wesolowski
     testified during the sentencing case concerning the
     impact of the offenses on them.

          After trial, the investigators questioned Amn
     Wesolowski about the television. She indicated she
     helped A1C Wheeler move a television to a dormitory
     room. In the same statement, Amn Wesolowski noted a
     fact about the incident at the armory that she had
     omitted. She reported that, before A1C Wheeler opened
     the armory door, she drew her handgun “in fear of her
     life,” Amn Wesolowski asked her what she was doing,
     and A1C Wheeler re-holstered the weapon. Amn
     Wesolowski said she did not know why she had not
     mentioned that before, other than she thought it was

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United States v. Johnson, No. 04-0611/AF


     not relevant.

          On 25 July 2001, the investigators re-interviewed
     A1C Wheeler about the television. She indicated that
     when she returned from the deployment, she found the
     note inviting her to pick up the television, and she
     did so. Apparently the television fell and may have
     been damaged while in A1C Wheeler’s possession. A1C
     Wheeler admitted that she made a false official
     statement to investigators when she denied knowledge
     of the location of the television. She said she did
     it because the appellant’s lawyers “would have used it
     against me,” and that, “they would have tried to say I
     wasn’t a credible witness and I would have lost my
     case.”

          There was one other incident post-trial that came
     to the attention of the defense counsel. On 3 August
     2001, Ms. Erica Shipp walked into the lobby of the
     base Finance office, and saw two women, in uniform,
     kissing. She reported it to a clerk on duty. He
     checked the sign-in roster, and one of the names was
     “Wesolowski.”

          The defense counsel moved for a new trial under
     R.C.M. 1210. They based the request on “newly
     discovered evidence,” specifically Amn Wesolowski’s
     report that A1C Wheeler drew and re-holstered her
     weapon before opening the door, and A1C Wheeler’s
     false official statement about knowing the location of
     the missing television. The defense counsel also
     asked the military judge to consider additional
     statements from their previous witness, A1C Ackerman,
     about specific conduct between A1C Wheeler and Amn
     Wesolowski, arguing that A1C Ackerman had just
     remembered the details. The defense also asserted
     that A1C Wheeler and Amn Wesolowski committed fraud on
     the court by concealing the extent of their personal
     relationship.

          The military judge reconvened the court-martial
     for a post-trial session and took statements and
     evidence on the motion. See United States v. Scaff,
     29 M.J. 60, 65 (C.M.A. 1989). A1C Wheeler and Amn
     Wesolowski asserted their right to remain silent. The
     convening authority denied the defense request for
     testimonial immunity for these witnesses. The
     military judge entered extensive findings of fact and

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United States v. Johnson, No. 04-0611/AF


     conclusions of law, and denied the motion. Applying
     the criteria in R.C.M. 1210, the military judge found
     that the false official statement about the television
     and the report of drawing and re-holstering the weapon
     was discovered after trial, and was not such that it
     would have been discovered before trial in the
     exercise of due diligence. However, he concluded that
     the new evidence probably would not have resulted in a
     substantially more favorable result for the accused.
     The military judge also concluded that, in light of
     the evidence admitted at trial about the relationship
     between A1C Wheeler and Amn Wesolowski, the additional
     evidence would not have had a substantial contributing
     effect on the findings of guilty or the sentence. He
     declined to consider the additional evidence A1C
     Ackerman remembered after trial.

Johnson, 2004 CCA LEXIS, at *2-*4, *15-*21, 2004 WL

1238955, at *1-*2, *6-*8.

                            DISCUSSION

     Appellant contends that the newly discovered evidence

affecting the credibility of Airman First Class (A1C) Amy J.

Wheeler and A1C∗ Nichole L. Wesolowski would probably produce a

substantially more favorable result for Appellant at a new trial

and that the fraud on the court allegedly perpetrated by A1C

Wheeler (and to a lesser degree by A1C Wesolowski) had a

substantial contributing effect on the findings of guilty and

the sentence.   The Government invites us to conclude that the

new evidence is largely cumulative and that neither the military




*
  Although referred to as “Airman” in the charge sheet and the
opinion of the court below, Wesolowski was apparently an “Airman
First Class” at the time of trial and is referred to as such in
this opinion.

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United States v. Johnson, No. 04-0611/AF


judge nor the court below erred in denying   Appellant’s request

for new trial.   We agree with the Government.

     Article 73, UCMJ, 10 U.S.C. § 873 (2000), allows petitions

for new trials “on the grounds of newly discovered evidence or

fraud on the court.”   Implementing this UCMJ provision, Rule for

Courts-Martial (R.C.M.) 1210(f)(2), (3) provide that:

     (2) Newly discovered evidence. A new trial shall not
     be granted on the grounds of newly discovered evidence
     unless the petition shows that:
     (A) The evidence was discovered after the trial;
     (B) The evidence is not such that it would have been
     discovered by the petitioner at the time of trial in
     the exercise of due diligence; and
     (C) The newly discovered evidence, if considered by a
     court-martial in the light of all other pertinent
     evidence, would probably produce a substantially more
     favorable result for the accused.

     (3) Fraud on court-martial. No fraud on the court-
     martial warrants a new trial unless it had a
     substantial contributing effect on a finding of guilty
     or the sentence adjudged.

     Although Appellant’s motion was made under R.C.M. 1102,

which governs post-trial sessions, the military judge correctly

applied the standards in R.C.M. 1210, as discussed in United

States v. Scaff:

     If evidence is discovered after trial which would
     constitute grounds for a new trial under RCM 1210(f),
     this might be considered a “matter which arises after
     trial and which substantially affects the legal
     sufficiency of any findings of guilty or the
     sentence” within the meaning of RCM 1102(b)(2).
     However, even if the drafters of the Manual did not
     intend such an interpretation of this Rule, we still
     are persuaded that Article 39(a) of the Code empowers
     the military judge to convene a post-trial session to


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United States v. Johnson, No. 04-0611/AF


     consider newly discovered evidence and to take
     whatever remedial action is appropriate.

29 M.J. 60, 65-66 (C.M.A. 1989).

      “This Court has opined that requests for a new trial, and

thus rehearings and reopenings of trial proceedings, are

generally disfavored.   Relief is granted only if a manifest

injustice would result absent a new trial, rehearing, or

reopening based on proferred newly discovered evidence.”   United

States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).    In United

States v. Brooks, this Court held that

     [w]hen presented with a petition for new trial, the
     reviewing court must make a credibility determination,
     insofar as it must determine whether the “newly
     discovered evidence, if considered by a court-martial
     in the light of all other pertinent evidence, would
     probably produce a substantially more favorable result
     for the accused.” RCM 1210(f)(2)(C). The reviewing
     court does not determine whether the proferred
     evidence is true; nor does it determine the historical
     facts. It merely decides if the evidence is
     sufficiently believable to make a more favorable
     result probable.

49 M.J. 64, 69 (C.A.A.F. 1998).

     “We review a military judge’s ruling on a petition for a

new trial for abuse of . . . discretion.”    United States v.

Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002).   An abuse of

discretion occurs “if the findings of fact upon which he

predicates his ruling are not supported by evidence of record;

if incorrect legal principles were used by him in deciding this

motion; or if his application of the correct legal principles to


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United States v. Johnson, No. 04-0611/AF


the facts of a particular case is clearly unreasonable.”    United

States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).

     In denying Appellant’s new trial request, the military

judge analyzed the new evidence and weighed it against the other

evidence at trial.   The military judge’s conclusions of law

properly apply the tests of both R.C.M. 1210(f)(2) and R.C.M.

1210(f)(3).   He concluded that the new evidence, considered

together with all other evidence, would not “probably produce a

substantially more favorable result” for Appellant.   He also

concluded that, even if the members were convinced by the

additional evidence of perjury by A1C Wheeler and A1C Wesolowski

that there had been a fraud on the court, that perjured evidence

had not had “a substantial contributing effect on any finding of

guilty or the sentence adjudged.”

     In the context of Military Rule of Evidence (M.R.E.) 412,

we have indicated that in determining whether evidence is

material, the military judge looks at:   “‘the importance of the

issue for which the evidence was offered in relation to the

other issues in this case; the extent to which this issue is in

dispute; and the nature of other evidence in the case pertaining

to this issue.’”   United States v. Colon-Angueira, 16 M.J. 20,

26 (C.M.A. 1983)(quoting United States v. Dorsey, 16 M.J. 1, 6

(C.M.A. 1983)).    We believe this test is useful as well in the

context of a petition for a new trial under R.C.M. 1210.


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United States v. Johnson, No. 04-0611/AF


     In determining that the new evidence would not produce a

substantially more favorable result for Appellant, the court

below correctly noted that:

     [w]hen petitions for a new trial are submitted to this
     Court, we have the “‘prerogative’ of weighing
     ‘testimony at trial against the’ post-trial evidence
     ‘to determine which is credible.’” United States v.
     Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (quoting United
     States v. Brozauskis, 46 C.M.R. 743, 751 (N.C.M.R.
     1972)). Consistent with federal civilian practice, we
     may review the evidence “both in terms ‘of credibility
     as well as of materiality.’” Id. (quoting Jones v.
     United States, 279 F.2d 433, 436 (4th Cir. 1960)).

Johnson, 2004 CCA LEXIS 133, at *22-*23, 2004 WL 1238955, at *9.

     Appellant’s new evidence raises several possibilities:     (1)

a fact-finder could conclude from this new evidence that the

security policewomen, who were the putative victims of

Appellant’s crimes, had engaged in carefully crafted lies; (2)

the new evidence could strengthen the motive to lie of the two

“victims,” one of whom shot Appellant during the melee; (3) A1C

Wheeler’s falsely sworn statement to the Air Force Office of

Special Investigations (OSI) was admittedly made for the purpose

of protecting her credibility at Appellant’s trial and evinces

the degree to which A1C Wheeler had sacrificed her integrity as

a law enforcement officer in favor of her own interests; and (4)

the new evidence could be important during the sentencing, as

well as in the making of the findings, because both A1C Wheeler

and A1C Wesolowski gave “victim impact” testimony.   See R.C.M.

1001(b)(4).

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United States v. Johnson, No. 04-0611/AF


     On the other hand, as the military judge and the court

below correctly noted, this new evidence must be weighed against

the other evidence at trial.   In this regard, and in addition to

the testimony of both A1C Wheeler and A1C Wesolowski,

Appellant’s oral statements and e-mails are compelling evidence

not only of her guilt and her own poor credibility, but also of

the extent to which the relationship between A1C Wheeler and A1C

Wesolowski was already before the members.

     In Appellant’s oral statement to the OSI, she first

maintained that she remembered nothing of the armory incident.

When confronted with evidence of her fingerprints on A1C

Wheeler’s pistol, Appellant then admitted that she had attempted

to draw A1C Wheeler’s weapon only after A1C Wheeler and A1C

Wesolowski had her pinned to the floor of the armory.   Appellant

then admitted that she took a 9mm gun from the rack, got a

magazine, which she loaded into the gun, and then chambered a

round (while leaving the safety on).   Finally, Appellant

admitted that she pointed the weapon at both A1C Wheeler and A1C

Wesolowski, but denied any intent to harm either.

     In the e-mail from Appellant to a third party, dated the

day before the armory incident and erroneously delivered to A1C

Wheeler, Appellant stated:

     I’ve been an a[******] ever since she broke up with
     me. I try not to be, but I just don’t understand. I
     know she’s tired of talking about it so I’m not gonna
     bring it up anymore either. I know I make her sound

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United States v. Johnson, No. 04-0611/AF


     bad, but it really isn’t all her fault. I’ve done
     some pretty f[*****] up stuff to her too. We had a
     fight a couple of weeks ago and I choked her. I hurt
     her pretty bad . . . . I’d give anything to be
     [Wesolowski] right now. I hope she knows how lucky
     she is. She better treat her right too. I’ll
     f[******] kill that b[****] with my bare hands.

     Although Appellant’s new evidence is, on the surface,

similar in nature to that examined by this Court in United

States v. Sztuka, 43 M.J. 261, 268 (C.A.A.F. 1995) (“[A]

petition for new trial may rest upon newly discovered evidence

that would ‘substantially impeach[]’ critical prosecution

evidence ‘on a material matter.’”) (involving purported

admission by husband that he put marijuana in appellant’s food),

as well as both United States v. Singleton, 41 M.J. 200, 204-07

(C.A.A.F. 1994) (ordering a new trial on multiple source

evidence of alternate perpetrator of threat and rape), and

United States v. Niles, 45 M.J. 455, 459-60 (C.A.A.F. 1996)

(ordering new trial on evidence of conflicting factual accounts

by prosecutrix in rape case), it is distinguishable.

     First, the new evidence here does not relate directly to

the assaults of which Appellant was convicted, i.e., the

evidence does not offer some new version of the facts presented

at trial.   The trial was not a one-on-one testimonial battle:

all three women testified; Appellant’s oral admissions were

recounted by an OSI agent; and an incriminating e-mail from




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United States v. Johnson, No. 04-0611/AF


Appellant, expressing jealousy and rage, and admitting to one of

the assaults, was received in evidence.

     Second, while credibility of witnesses certainly was an

issue, the record is strewn with indicia of dishonesty

pertaining to all three airmen.    A reasonable fact-finder could

have concluded that all three women were lying, in varying

degrees.   Given Appellant’s admissions and her e-mail, it was

not an abuse of discretion for the military judge and the court

below to determine that even substantial additional impeachment

material or potential perjury would not meet the requirements of

R.C.M. 1210(f)(2), (3).

     Third, A1C Wesolowski’s “forgotten” observation of A1C

Wheeler having drawn, and then reholstered, her weapon before

A1C Wheeler opened the armory door to Appellant, is of ambiguous

effect.    While it further impeaches A1C Wesolowski’s

credibility, it also serves to establish that A1C Wheeler was

very afraid of Appellant, bolstering the evidence of prior

assaults of which Appellant was convicted.

     Finally, evidence that A1C Wheeler and A1C Wesolowski had

been kissing in the finance office while in uniform was largely

cumulative.   There was already significant evidence from which

the members could conclude that A1C Wheeler and A1C Wesolowski

were romantically involved, so as to support Appellant’s claim

of bias and motive to lie.


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United States v. Johnson, No. 04-0611/AF


                           CONCLUSION

     Reviewing the military judge’s ruling and the holding of

the court below, in the context of the standard of review for a

new trial, we hold that the denial of Appellant’s request for a

new trial was not an abuse of discretion.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Johnson, No. 04-0611/AF



     EFFRON, Judge (dissenting):

     Appellant was charged with assaulting Airman First Class

(A1C) Wheeler and A1C Wesolowski in two separate incidents.     As

described in detail in both the majority opinion and in the

opinion of the lower court, both incidents involved fights that

ensued after angry words, strained relationships, and suicide

attempts by Appellant.   In the first incident, A1C Wheeler

testified that Appellant was the aggressor.   Appellant denied

striking A1C Wheeler on that occasion, and testified that she

had engaged in a fight with A1C Wheeler during the same period,

which had been instigated by A1C Wheeler.   In the second

incident, A1C Wheeler and A1C Wesolowski each testified that

Appellant was the aggressor and Appellant had threatened them

with a weapon.   Appellant testified that A1C Wheeler was the

aggressor, and that she had threatened to kill herself, not the

other airmen, with the weapon.

     The prosecution’s primary evidence consisted of the

testimony from A1C Wheeler and A1C Wesolowski.   As noted in the

majority opinion, the prosecution presented other evidence,

including pretrial statements made by Appellant concerning her

physical encounters with A1C Wheeler and her animosity for A1C

Wesolowski.   These statements, while significant, reflected the

tumultuous interaction among the parties to the two incidents,
United States v. Johnson, No. 04-0611/AF


and did not amount to an admission of the elements of the

charged offenses.

     The defense position at trial was that Appellant did not

initiate the physical attacks, but instead responded to physical

attacks initiated by A1C Wheeler.   In that context, the

testimony of a third party -– A1C Wesolowski -- was a key

component of the prosecution’s case, particularly on the charges

growing out of the second incident, including the charge of

assault with intent to commit murder.   The defense sought to

undermine the credibility of A1C Wesolowski by showing that the

intensity of her relationship with A1C Wheeler provided a motive

to lie.

     At the outset of trial, the prosecution sought through a

motion in limine to exclude any evidence regarding the

relationship between A1C Wheeler and A1C Wesolowski.   The

military judge denied the motion and allowed the defense to

explore the relationship for the purposes of demonstrating bias

under Military Rule of Evidence 608(c).    At trial, A1C Wheeler

and A1C Wesolowski sought to minimize their relationship,

denying that there was any sexual intimacy or an ongoing

homosexual relationship prior to the two charged incidents.     The

defense challenged this testimony through cross-examination and

the introduction of contradictory prior statements.    At best,




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United States v. Johnson, No. 04-0611/AF


the evidence at trial about the nature of their relationship was

inconclusive.

     At a post-trial session under Article 39(a), Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 839 (2000), the defense

moved for a new trial on a variety of grounds, including fraud

on the court committed by the two primary witnesses against

Appellant -– A1C Wheeler and A1C Wesolowski.   In the motion, the

defense cited newly discovered evidence of witnesses who saw the

two airmen at various times sleeping in the same bed; kissing on

the lips; and engaging in other displays of affection.    The

defense also relied upon post-trial evidence confirming

Appellant’s pretrial allegation that A1C Wheeler had stolen her

television set.   The post-trial evidence indicated that A1C

Wheeler and A1C Wesolowski had taken the television and

attempted to hide it in the rooms of other airmen.    In addition,

A1C Wheeler made a post-trial statement in which she

acknowledged lying to defense counsel about the television set

prior to trial because she was concerned that defense counsel

would have used the incident against her and she did not want to

lose what she viewed as her case against Appellant.

     As noted in the majority opinion, motions for a new trial

generally are disfavored.   61 M.J. at ___ (9-10).   A new trial

is authorized under Article 73, UCMJ, 10 U.S.C. § 873 (2000),

based upon “newly discovered evidence or fraud on the court.”


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United States v. Johnson, No. 04-0611/AF


Under Rule for Courts-Martial (R.C.M.) 1210(f)(2)(C), the

defense must show that any newly discovered evidence “if

considered . . . in light of all other pertinent evidence, would

probably produce a substantially more favorable result for the

accused.”    With respect to evidence of a fraud on the court-

martial, the defense must show that the fraud “had a substantial

contributing effect on a finding of guilty or the sentence

adjudged.”   R.C.M. 1210(f)(3).

       The military judge determined that the new evidence and

evidence of fraud did not meet these standards, and the majority

concludes that the military judge did not err.    61 M.J. ___ (11-

15).   I respectfully disagree.

       Current military policy provides a powerful incentive to

conceal or minimize a homosexual relationship.    By law, a

servicemember who engages in homosexual conduct or who states

that he or she is a homosexual, is subject to mandatory

discharge, with very limited exceptions.   10 U.S.C. § 654(b)

(2000).   This policy is based upon congressional findings that

“[t]he presence in the armed forces of persons who demonstrate a

propensity or intent to engage in homosexual acts would create

an unacceptable risk to the high standards of morale, good order

and discipline, and unit cohesion that are the essence of

military capability.”   10 U.S.C. § 654(a)(15).   A person who

faces mandatory discharge may be retained only if he or she


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United States v. Johnson, No. 04-0611/AF


establishes in an administrative process that the conduct was

atypical under a stringent test.         10 U.S.C. § 654(b).

Regardless of what decisions might be made in the future with

respect to the constitutionality of that policy and related

matters, see Lawrence v. Texas, 539 U.S. 558 (2003); United

States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the statute

reflected well-established military policy at the time of

Appellant’s trial.    See, e.g., Richenberg v. Perry, 97 F.3d 256,

258-61 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 919-25

(4th Cir. 1996); Able v. United States, 44 F.3d 128, 130-32 (2d

Circuit 1995); Thorne v. United States, 916 F. Supp 1358, 1364-

67 (E.D. Va. 1996); Watson v. Perry, 918 F. Supp. 1403, 1407-10

(W.D. Wa. 1996).

        Under these circumstances, both A1C Wheeler and A1C

Wesolowski had a substantial stake in minimizing the intensity

of their relationship.    To the extent that they did so, their

testimony perpetrated a fraud on the court.        Such a fraud

deprived the court-martial of critical testimony on the issue of

bias.

        In concluding that any such fraud did not have a

substantial contributing effect on the finding of guilty or the

sentence adjudged under R.C.M. 1210(f)(3), the majority opinion

relies on evidence of incriminating pretrial statements by

Appellant.    61 M.J. ___ (13-14).       These statements, however, did


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United States v. Johnson, No. 04-0611/AF


not constitute admissions by Appellant that she engaged in the

offenses growing out of the second incident, including the

charges of assault with intent to commit murder.

     After noting that there were credibility issues concerning

all three airmen, the majority opinion states that a “reasonable

fact-finder could have concluded that all three women were

lying, in varying degrees.”   61 M.J. ___ (14).     The mere

possibility that the members could have reached such a

conclusion, however, does not mean that they did so.      The

members necessarily concluded that A1C Wheeler and A1C

Wesolowski were not lying on the basis of the evidence presented

at trial, at least as to the details of the charged offenses --

a conclusion that was reached without the benefit of the

evidence obtained after trial.   In light of the verdict, we are

not in a position to conclude that the members rejected any

aspect of the testimony by A1C Wheeler and A1C Wesolowski,

including their relatively benign description of their

relationship.   The post-trial evidence of their romantic

involvement was not simply “cumulative” as suggested by the

majority, but instead constituted qualitatively different

information that would have substantially impeached the

testimony of these witnesses on a material matter, particularly

in terms of demonstrating the intensity of A1C Wesolowski’s bias

to lie on behalf of A1C Wheeler.       See United States v. Sztuka,


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United States v. Johnson, No. 04-0611/AF


43 M.J. 261, 268 (C.A.A.F. 1995).     The impact of bias is

directly linked to the nature of a relationship.    Here, the

prosecution’s presentation of evidence concerning A1C Wheeler

and A1C Wesolowski portrayed a friendship with mild sexual

overtones, a situation involving a considerably diminished

motive to lie, as compared to a sexual relationship,

particularly a homosexual relationship in the armed forces.     In

the absence of critical information on the intensity of the

relationship, the members received a distorted presentation of

evidence at trial on the question of bias by witnesses central

to the prosecution.    Under these circumstances, Appellant should

have been granted the opportunity to present the new evidence of

bias at a new trial.




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