

   
   
   
   U.S. v. Williams



IN THE CASE OF
UNITED STATES, Appellee
v.
Dudley C. WILLIAMS, Lieutenant Commander
U.S. Navy, Appellant
 
No. 99-0052
Crim. App. No. 97-0227
 
United States Court of Appeals for the Armed
Forces
Argued October 28, 1999
Decided January 20, 2000
SULLIVAN, J., delivered the opinion of
the Court, in which CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Lieutenant
John D. Holden, JAGC, USNR (argued); Lieutenant Robert Attanasio,
JAGC, USNR.
For Appellee: Lieutenant
James E. Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: P. M. Stimso
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the Court.
During March and July of 1996, appellant, a
naval officer, was tried by a general court-martial composed of a military
judge sitting alone at Naval Legal Service Office, Rota, Spain. After entering
mixed pleas, he was found guilty of numerous offenses related to the unlawful
use and trafficking of contraband drugs. In particular, he was found guilty,
contrary to his pleas, of soliciting an enlisted person to wrongfully distribute
heroin, in violation of Article 134, Uniform Code of Military Justice,
10 USC § 934. He was sentenced to a dismissal, confinement for 12
years, and forfeiture of all pay and allowances. On February 4, 1997, the
convening authority approved the sentence, and the Court of Criminal Appeals
affirmed on July 9, 1998.
On May 5, 1999, this Court granted review on
the following issue of law:



WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
TO SUSTAIN A CONVICTION FOR SOLICITATION (ADDITIONAL CHARGE IV) WHERE THE
TESTIMONY OF THE GOVERNMENT'S SOLE WITNESS, A CO-CONSPIRATOR, WAS UNCORROBORATED
AND INHERENTLY SUSPECT.



We hold that the evidence of record, viewed in
its entirety, reasonably supported a finding of guilty beyond a reasonable
doubt to the charged offense of solicitation. See generally
Jackson v. Virginia, 443 U.S. 307 (1979); Caminetti v. United
States, 242 U.S. 470, 495 (1917).
Appellant was charged with and pleaded not
guilty to the following offense:



Additional Charge IV: Violation of Article
134, UCMJ
Specification: In that Lieutenant Commander
Dudley C. Williams, U.S. Navy, Commander, Fleet Air Mediterranean, on active
duty, did, in the vicinity of Naples, Italy, on or about February 1995,
wrongfully solicit Staff Sergeant Mark Kelly, U.S. Air Force, to wrongfully
distribute heroin, a controlled substance, an offense under the Uniform
Code of Military Justice.



The prosecution offered the testimony of former
Chief Petty Officer Jeffrey Kendall to prove this offense. He testified
as follows:



Q. Did he ever show you, or describe to you,
any of the bags that he used to smuggle heroin?
A. I saw the first one and I saw the last one.
Q. How was it that you saw the first one?
A. I took him to the airport.
Q. And how was it that you saw the last one?
A. The last one when I went to Ossie's to -
- with the commander to do my transaction, they actually showed me a leather
satchel. I can't describe it. It's like a brief case type thing with hand
-- retractable handles. It's made of regular leather and he said that that
was the bag he had carried on his last trip.
Q. Did it look like it had had heroin in it?
A. It -- it -- I remember the stitches being
open but I -- I was pretty amazed that something that small could carry
heroin in it.
Q. When you say that he had -- he had aspirations
to take over the drug business, did he ever discuss with you how he was
going to do that?
A. Other than his pooling of resources, no.
Q. Did he ever discuss with you recruiting
other people?
A. Yes.
Q. What other people -- what other
people did he recruit to go to ----
A. He tried to recruit a friend of mine.
Q. Who was that?
A. Mark Kelly.
Q. Okay. Before we get to that -- well, let's
go right into that then, excuse me. Who is Mark Kelly?
A. Mark Kelly is a friend of mine that I met
when I initially started working at PROTO.
Q. Okay. And you smoked crack cocaine with
him?
A. I ultimately -- I ended up smoking crack
with him, yes.
Q. Okay. What was the first time that you smoked
crack with him? Can you describe the circumstances?
A. We had -- it was cold outside, probably
around November. We had gone downtown looking for some cocaine, couldn't
find any. I called Commander Williams on -- on Kelly's cellular telephone
and asked him what was up, he said, "Nothing". I asked him if he had anything,
he said, "Yeah". I said, "Well, I'm with Mike and Mark, do you mind if
we come over"? he said, "No," and we shot to his house.
Q. And what happened at his house?
A. We went up to his bedroom and smoked
crack cocaine.
Q. Had you ever taken illegal drugs with Kelly
and Roger before you did it with Commander Williams?
A. We had -- we had done -- we had never smoked
cocaine together, no.
Q. Had you ever sniffed cocaine together?
A. We did once, but it was after, it was probably
a couple of weeks before that.
Q. How -- how did it first come up, the idea
of Kelly going to Turkey? What exactly happened?
A. I had told Mike and Mark, you know, what
the commander and I were up to and, of course, their -- their reaction
was disbelief. Through the course of the next few months -- I didn't
actually tell them exactly what I was doing until after I had done it,
you know, and it was -- actually my first trip was relatively easy. It
was quite easy. After that we -- we talked about it on occasion. The
commander asked me if -- if he thought I would -- if he thought that I
thought that Kelly would be interested in going to Turkey and I was very
hesitant about that. I didn't want to get them involved in it and I
said, "Well, I don't know". He said, "Why don't you ask them -- ask
him". I said, "Okay". And, I hem-hawed around for a while and he quizzed
me a few times if I had asked him and I said, "No, not really, you know,
I'll get around to it". Eventually, what happened was we were in the
Raging Bull and the commander went up to Kelly and asked him if he was
ready to go and Kelly said something like, "Go where?" and he said, "Are
you ready to go, you got your passport?" and Kelly was like, "I'm not going
to go". And that was basically the end of it.



(Emphasis added.)
___ ___ ___
Appellant asserts that the evidence of record
is legally insufficient to support his conviction for solicitation of an
enlisted person to distribute heroin. He first argues that the evidence
admitted did not establish sufficient facts to constitute solicitation
as required by military criminal law. He further argues that this evidence
was legally insufficient because it consisted of legally unreliable testimony.
Appellant's first argument focuses on the averred
legal inadequacy of the testimony of Chief Kendall to establish his guilt
of the charged offense of solicitation. He contends that "[t]here was no
evidence presented that either Appellant or Chief Kendall ever specifically
discussed drug distribution with SSgt [Staff Sergeant] Kelly." Final Brief
at 10. He also argues that his purported statement to Kelly, "Are you ready
to go, you got your passport?" does not reference drugs, nor does it discuss
drug distribution. Finally, he notes his express denial on the record that
he ever personally asked SSgt Mark Kelly to become involved in drug smuggling
activities or asked Chief Kendall to ask SSgt Kelly to be involved.
"Solicitation" to commit a crime is usually
prosecuted under Article 134, and we have approved the President's explanation
of the elements of this offense as found in paragraph 105b, Part IV, Manual
for Courts-Martial, United States (1995 ed.). See United States
v. Carroll, 43 MJ 487, 488-89 (1996). In proving this offense, the
prosecution must show, inter alia, that the accused solicited
or advised a certain person or persons to commit a certain offense under
the Code, other than one of the four offenses named in Article 82, UCMJ,
10 USC § 882. Id. Solicitation in this context means an express
or "implicit invitation to join in a criminal plan." United States v.
Oakley, 7 USCMA 733, 735, 23 CMR 197, 199 (1957).
Admittedly, in the case at bar, it was not
shown that appellant expressly invited SSgt Kelly to transport and deliver
heroin. Nevertheless, it is long established that evidence of the entire
context in which an alleged statement was made can be considered in determining
its criminal nature as a solicitation. See United States v. Isbell,
1 USCMA 131, 134-35, 2 CMR 37, 40-41 (1952); see also United
States v. Oakley, supra. Here, it was shown that, prior to the
alleged solicitation, appellant and SSgt Kelly used drugs together, and
SSgt Kelly was informed of appellant's and Chief Kendall's international
drug smuggling operation, including Chief Kendall's drug buying trips to
Turkey for appellant. It was also shown that, after the alleged solicitation,
SSgt Kelley used words of rejection, suggesting his view that a solicitation
had occurred. In this context, appellant's words to SSgt Kelly concerning
possession of a passport and his readiness to go can reasonably be construed
as an invitation to SSgt Kelly to join the previously disclosed criminal
enterprise.
Appellant next asserts that the evidence of
record is insufficient to support his conviction for solicitation because
it was purportedly based solely on legally unreliable testimony. He argues
that the uncorroborated testimony of an alleged accomplice who is "a chronic
liar" is not legally sufficient to support his conviction of this offense.
He cites United States v. Lee, 6 MJ 96 (CMA 1978), as authority
for this rule, but he admits that contrary precedent exists. See
United States v. Westmoreland, 31 MJ 160, 167 (CMA 1990). We reject
his argument.
Prior to the 1984 Manual for Courts-Martial,
the President, in paragraph 74(a)(2), Manual for Courts-Martial, United
States, 1969 (Revised ed.) (Change 3 Sept. 1, 1980), stated:



Weighing evidence. In weighing the
evidence, a member is expected to utilize his common sense and his knowledge
of human nature and of the ways of the world. In the light of all the circumstances
of the case, he should consider the inherent probability or improbability
of the evidence, and, with this in mind, he may properly believe one witness
and disbelieve several witnesses whose testimony is in conflict with that
of the one. A conviction cannot be based solely upon self-contradictory
testimony given by a witness other than the accused, even if a motive on
the part of the accused to commit the offense is shown, if the contradiction
is not adequately explained by the witness in the witness testimony. Also,
a conviction cannot be based upon uncorroborated testimony given by an
accomplice in a trial for any offense if the testimony is self-contradictory,
uncertain, or improbable. Even if apparently corroborated and apparently
credible, testimony of an accomplice which is adverse to the accused is
of questionable integrity and is to be considered with great caution. When
appropriate, the above consideration should, upon request by the defense,
be included in the general instructions of the military judge or the president
of a special court-martial without a military judge.



(Emphasis added); see also para.
153(a), Manual for Courts-Martial, United States, 1951.
We note that the above Manual rule did not
require corroborative evidence to support a conviction whenever
an accomplice testified against an accused, i.e., the traditional
accomplice testimony rule. See 7 Wigmore, Evidence §
2056 at 414 n. 10 (Chadbourn rev. 1978). Instead, it required corroboration
to support a conviction only when the accomplice's testimony was "self-contradictory,
uncertain, or improbable." This rule is the same as that followed in federal
appellate courts, which generally allows convictions based on uncorroborated
accomplice testimony. Id; see generally 4 Orfields
Criminal Procedure Under the Federal Rules § 26:641-45 at 403-15
(2nd ed. 1987). That rule too prohibits convictions based on
uncorroborated accomplice testimony only when that testimony is otherwise
unreliable on its face. See Caminetti, 242 U.S. at 495; Orfield,
supra
at 408-09; United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th
Cir. 1987); Lyda v. United States, 321 F.2d 788, 794-95 (9th
Cir. 1963).
We also note that this Court has had some difficulty
in determining whether the above Manual rule established a rule of legal
sufficiency or merely a rule of evidentiary instruction. See United
States v. Scales, 10 USCMA 326, 328, 27 CMR 400, 402 (1959); United
States v. Allums, 5 USCMA 435, 438-39, 18 CMR 59, 62-63 (1955); see
generally Wigmore, supra, §§ 2057 and 2059(d) at
417 and 438. We ultimately concluded that evidentiary sufficiency concerns
were raised by this rule. See United States v. Diaz, 22 USCMA
52, 56-57, 46 CMR 52, 56-57 (1972). In the Lee case, cited by appellant,
this Court recognized and applied the evidentiary sufficiency section of
paragraph 153(a), the Manual predecessor of paragraph 74(a)(2). See
Lee, 6 MJ at 97-98.
Nevertheless, at the time of appellants trial,
RCM 918(c), Manual, supra (1995 ed.), stated that "[f]indings may
be based on direct or circumstantial evidence. Only matters properly before
the court-martial on the merits of the case may be considered. A finding
of guilty of any offense may be reached only when the factfinder is satisfied
that guilt has been proved beyond a reasonable doubt." The Discussion of
this Manual rule more particularly stated:



Findings of guilty may not be based solely
on the testimony of a witness other than the accused which is self-contradictory,
unless the contradiction is adequately explained by the witness. Even
if apparently credible and corroborated, the testimony of an accomplice
should be considered with great caution.



(Emphasis added.)
Accordingly, the legal basis for the opinion
of this Court cited by appellant as authority for his legal sufficiency
rule did not exist at the time of his trial in 1996. See Lee,
supra
at 97; cf. United States v. Gittens, 39 MJ 328, 331 (CMA
1994) (holding that military law permits a cautionary instruction on accomplice
testimony); United States v. Gillette, 35 MJ 468 (CMA 1992); United
States v. McKinnie, 32 MJ 141 (CMA 1991); see generally
Westmoreland, 31 MJ at 166 (noting paragraph 74(a)(2) was omitted
from the 1984 version of the Manual).
Moreover, even if this evidentiary insufficiency
rule is still good law (see United States v. Smith, 13 USCMA
105, 119-20, 32 CMR 105, 119-20 (1962)(recognizing power of this Court
to establish its own legal sufficiency rules under Article 67, UCMJ, 10
USC § 867)), it was not violated in this case. We have reviewed Chief
Kendall's testimony on appellant's alleged solicitation of SSgt Kelly to
determine whether it was self-contradictory, uncertain, or improbable.
See
Westmoreland,
supra at 167; Lee, supra at 97.
We conclude that it was not facially unreliable as delineated in this rule.
See
Scales, 10 USCMA at 328, 27 CMR at 402; United States v. Bermea,
30 F.3d 1539, 1552(5th Cir. 1994) ("Testimony is incredible
as a matter of law only if it relates to facts that the witness could not
possibly have observed or to events which could not have occurred under
the laws of nature."). Lastly, appellant has proffered no authority for
the proposition that his "chronic liar" attack on Chief Kendall's character
for truthfulness alone is sufficient to render this witness testimony
"implausible" as a matter of law and, thus, insufficient for conviction
under such a rule.
Id. (neither grant of immunity nor testimonial
inconsistencies stamp an accomplices testimony as unbelievable as a matter
of law).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.

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