

   
   
   
   U.S. v. Browning



UNITED STATES, Appellee
v.
Samuel G. BROWNING, Staff Sergeant
U.S. Army, Appellant
 
No. 99-0417
Crim. App. No. 9601041
 
United States Court of Appeals for the Armed
Forces
Argued February 2, 2000
Decided August 31, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and COX, S.J., joined. EFFRON, J.,
filed an opinion concurring in part and
in the result.
SULLIVAN, J., filed an opinion concurring
in the result.
Counsel
For Appellant: David P. Sheldon (argued);
Mary
Price and Captain Steven P. Haight (on brief); Captain Paul
J. Perrone.
For Appellee: Major Patricia A. Ham
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief); Captain Arthur J. Coulter.
Military Judge: Richard J. Hough
 
 
This opinion is subject to
editorial correction before publication.
 
 

Judge GIERKE delivered the opinion of the
Court.

A general court-martial composed of officer and
enlisted members convicted appellant, contrary to his pleas, of larceny
(12 specifications) and filing false documents for the purpose of obtaining
payments of claims against the United States (10 specifications), in violation
of Articles 121 and 132, Uniform Code of Military Justice, 10 USC §§
921 and 932, respectively. The adjudged and approved sentence provides
for a dishonorable discharge, confinement for 10 years, total forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed in an unpublished opinion.
This Court granted review of the following
issues:


I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY NOT EXCLUDING, UNDER MIL. R. EVID. 403 AND 404(b), EVIDENCE OF THE MISCONDUCT
OF OTHER ACTORS.

II
WHETHER THE MILITARY JUDGE COMMITTED REVERSIBLE
ERROR BY ADMITTING EVIDENCE OF AN UNCHARGED CONSPIRACY AND BY REPEATEDLY
INSTRUCTING THE MEMBERS ON APPELLANTS LIABILITY AS A CO-CONSPIRATOR.

III
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
IN PERMITTING TRIAL COUNSEL TO PRESENT EVIDENCE THAT APPELLANT HAD THREATENED
THE LIFE OF THE KEY PROSECUTION WITNESS.

IV
WHETHER THE MILITARY JUDGE ERRED IN REFUSING
THE DEFENSE THE OPPORTUNITY TO PRESENT CERTAIN WITNESSES AND CERTAIN TESTIMONY
THAT SUPPORTED THE DEFENSES THEORY OF THE CASE.

For the reasons set out below, we affirm.
 


ISSUES I, II, AND III: EVIDENCE OF UNCHARGED
MISCONDUCT
Factual Background

The prosecution theory was that appellant,
in his capacity as noncommissioned officer-in-charge of the 3d Armored
Cavalry Regiment Comptrollers Office, participated with several soldiers
in a fraudulent temporary-duty (TDY)-travel scheme. Appellant or one of
his subordinates in the Comptrollers Office would authorize issuance of
travel orders for bogus TDY trips or would create bogus receipts reflecting
travel expenses. Various soldiers involved in the scheme would then use
these bogus documents to fraudulently establish their entitlement to compensation
for travel expenses.
Ultimately, one of appellants subordinates,
Private (PVT) Joncoaltz, who was then a Staff Sergeant (SSG), confessed
his own involvement in the scheme and implicated others, including appellant.
The defense theory was that PVT Joncoaltz framed appellant.
Before the trial began, the Government notified
the defense, in accordance with Mil. R. Evid. 404(b), Manual for Courts-Martial,
United States (1995 ed.)*
that it intended to introduce evidence that appellant "engaged in an extensive
conspiracy with [then-]SSG Joncoaltz, SSG Benzien, and CPT [Captain] Demary
to steal TDY funds"; that he "helped PVT Bradley beef up a TDY settlement";
and that he "twice threatened to kill SSG Joncoaltz if he ever revealed
the fraudulent TDY conspiracy." The defense made a motion in limine,
asking the military judge to preclude the Government from introducing this
evidence. After hearing the testimony of PVT Joncoaltz and PVT Bradley
at an Article 39(a), UCMJ, 10 USC § 839(a), session, the military
judge denied the defenses motion in limine as to this evidence.
The military judge found that this proffered testimony was admissible under
Mil.R.Evid. 404(b) for a proper purpose, i.e., to show knowledge,
plan, intent, and opportunity. In addition, after applying the balancing
test of Mil.R.Evid. 403, the military judge found that the probative value
of the proffered testimony was not substantially outweighed by the danger
of unfair prejudice.
During the prosecution case-in-chief, PVT Bradley
testified that, in 1993, he returned from a TDY trip and made a comment
to appellant that he was "worried about trying to break even on my TDY
trip." Appellant created a bogus lodging receipt for Bradley, which allowed
Bradley to receive more money than he should have received.
On cross-examination, PVT Bradley testified
that he was convicted of stealing "a little over $10,000" by filing false
TDY claims during 1994. His co-actor in these thefts was PVT Joncoaltz,
who told him that the fraudulent TDY scheme involved "[j]ust me and him."
PVT Joncoaltz, who had been convicted of stealing
$80,000 through fraudulent TDY vouchers, testified that he stole about
$31,000 in his own name, and the remainder on settlement vouchers for appellant,
SSG Benzien, PVT Bradley, CPT Demary, and "various other individuals."
PVT Joncoaltz testified that he was having
financial difficulties when he first started working for appellant and
that appellant suggested that he could assist Joncoaltz with his financial
problems by creating fraudulent TDY vouchers for travel that was never
performed. He identified three vouchers on which appellant assisted him.
He also identified eight fraudulent vouchers submitted by appellant, two
submitted by SSG Benzien, and one submitted by CPT Demary. The participants
in the scheme assisted each other by approving orders, providing information
about hotels and transportation to be used to create bogus receipts, and
creating bogus receipts using computers.
PVT Joncoaltz also testified that appellant
threatened him twice. The first time, appellant drove to Joncoaltzs residence
and told him that if the conspiracy was revealed or if Joncoaltz "screwed
up by getting to [sic] greedy," Joncoaltz "could be found out in the desert
dead." The second time, appellant and SSG Benzien came to Joncoaltzs residence,
drove away with him in the vehicle, and told him that he "could be found
in the desert dead with a bullet between [his] eyes and it could be done
very easily due to the fact that Mexico is right here at the border and
things can be bought very cheaply in Mexico."
After the challenged testimony was presented
to the panel members, the military judge instructed the members as follows
about the limited purposes for which the testimony could be considered:

Members of the Court, you have heard evidence
that Staff Sergeant Browning may have agreed to help Private Bradley to
dummy up the travel vouchers and the documents necessary for him to submit
a false document in order to collect money that he wasnt entitled to.
Youve heard testimony also, that Staff Sergeant Browning may have helped
Private Joncoaltz dummy up documents and to assist him to prepare supporting
documents. Youve heard testimony that Benzien may have dummied up documents,
and the documents contained in some of the travel documents submitted by
Benzien may have been fraudulent. You may consider this evidence for [sic]
very limited purpose. You may consider the evidence for its limited purpose
of its tendency, if any, to establish a motive, opportunity, plan, knowledge,
or absence of mistake, in these charges that Staff Sergeant Browning now
faces. You may also consider [sic] for its limited tendency, if any, to
establish that there was an agreement between Staff Sergeant Browning and
Private Joncoaltz, or Private Bradley, or Private Benzien, or with Captain
Demary. You may not consider this evidence for any other purposes than
those that Ive just listed, and you may not conclude from this evidence
that Staff Sergeant Browning is a bad person or has criminal tendencies,
and that he therefore committed the offenses charged. Youve also heard
testimony that Staff Sergeant Browning and Benzien threatened Private Joncoaltz
on two occasions. You may consider this evidence for a very limited purpose
also. It may [sic] considered by you for the limited purposes of its tendency,
if any, to establish that there was an agreement between the accused and
Private Joncoaltz and/or an agreement between the accused and Benzien and
Captain Demary. You may also use it for its tendency, if any, to establish
a knowledge of guilt. You may not consider this evidence for any other
purpose, and you may not conclude from the evidence that Staff Sergeant
Browning is a bad person or has criminal tendencies, and that he therefore
committed the offenses charged. Now, do you understand the limited purpose
for which this information is [sic] may be considered by you?
(Affirmative response from the members)

Before the court members closed to vote on findings,
the military judge repeated the same limiting instruction, using virtually
identical language. In addition, he instructed them that they could consider
the evidence "to prove the existence and participation of the accused in
one or more conspiracies, that is agreements, to steal money from the United
States Government."
The military judge again asked the members
if they understood the instructions, and they again gave affirmative responses.
Defense counsel expressed no objection to the judges limiting instructions.
After instructing on the limited use of the
evidence under Mil. R. Evid. 404(b), the military judge instructed, in
accordance with a prosecution request, on the prosecutions theory of vicarious
criminal liability. He instructed the members that appellant could be found
guilty if he aided and abetted another in committing an offense. He also
instructed that appellant could be found guilty if he was a member of a
conspiracy and the actual criminal act was done by another conspirator
in furtherance of the conspiracy.
At the conclusion of these instructions, defense
counsel objected to the conspiracy instruction as misleading. He argued:



I object to the conspiracy instruction being
given because Im afraid that its misleading the Panel into thinking that,
even if for some reason they dont think Sergeant Browning actually committed
these offenses, that if he somehow was involved in this, they could find
him guilty of conspiracy, and hes not charged with that and I dont believe
that thats a lesser included [sic].



The military judge then gave the following clarifying
instruction:



Members of the Court, I gave an instruction
concerning the liability of conspirators, co-conspirators for actions during
the course of a conspiracy. I want to make it clear that Staff Sergeant
Browning is not charged with a conspiracy. Hes charged with larcenies.
And hes charged with filing false claims, using a paper. Those are the
offenses that are before you. Now, the Government has alleged, and they
presented evidence, that there was an agreement, or there may have been
an agreement, or there may have been several agreements that involved the
commission of these offenses. Do you understand that?
(Affirmative response from the members)
And so the purpose of this instruction is to
bring to your attention that, if a member is a part of a conspiracy, part
of an agreement, and if during the course of that conspiracy, and before
that party, before the accused soldier withdrawals [sic] from the conspiracy,
one member, any member of that conspiracy commits some overt act that brings
about the results of the conspiracy, the agreement, then that accused person
is also responsible. Do you understand what Im saying?
(Affirmative response from the members)

* * *
Now, Members of the Court, before you find
Staff Sergeant Browning guilty of larceny, any of the larcenies, or the
violation-of-Article-132 offenses, you must be satisfied, beyond a reasonable
doubt, that an offense is committed in furtherance of that conspiracy,
or that offense was in [sic] an object of [sic] conspiracy. Now, Ive been
talking to you about this liability of co-conspirators. If youre satisfied,
beyond a reasonable doubt, that at the time this offense was committed,
Staff Sergeant Browning entered into and continued to be a member of an
unlawful conspiracy, as Ive defined that for you, and if you find, beyond
a reasonable doubt, that this offense was committed while the conspiracy
continued to exist and in furtherance of an unlawful conspiracy, or was
an object of that conspiracy, then you may find Staff Sergeant Browning
guilty of this offense, as a co-conspirator, even though he was not the
person who actually committed the criminal offense.



At the conclusion of his instructions, the military
judge asked if counsel for either side objected to any instructions or
requested additional instructions. Defense counsel asked if a "spillover"
instruction was given, received an affirmative response from the military
judge, and then responded, "Then I have no objections."
In his argument on findings, trial counsel
stated that "its not our theory that he created all the [false] documents."
Instead, he argued that "the bottom line with this is that, if youre in
a criminal enterprise, youre responsible for the whole thing."

Discussion
Appellant now asserts that the evidence was
erroneously admitted under Mil. R. Evid. 404(b), because there was insufficient
evidence that appellant committed the uncharged acts; and the probative
value of the evidence of appellants threat against PVT Joncoaltz was outweighed
by its prejudicial impact. He also asserted that the evidence of a conspiracy
and the military judges instruction on conspiracy was an impermissible
amendment of the charges. Because defense counsel did not object to the
instructions on vicarious liability after the military judge gave a clarifying
instruction, any defects in the instructions were waived unless they rise
to the level of plain error. See RCM 920(f), Manual, supra;
United
States v. Powell, 49 MJ 460 (1998).
Mil. R. Evid. 404(b) "is a rule of inclusion
rather than exclusion." It permits admission of relevant evidence of other
crimes or acts unless the evidence "tends to prove only criminal disposition."
See
United States v. Simon, 767 F.2d 524, 526 (8th Cir.),
cert. denied, 474 U.S. 1013 (1985).
In United States v.Reynolds, 29 MJ 105,
109 (1989), this Court adopted a three-pronged test for admissibility of
"other acts" evidence under Mil. R. Evid. 404(b). First, such evidence
must "reasonably support a finding by the court members that appellant
committed prior crimes, wrongs, or acts[.]" Second, such evidence must
make a "fact . . . of consequence
. . . more or less probable[.]" Third,
its "probative value" must not be "substantially outweighed by the danger
of unfair prejudice[.]" The standard of proof for the first prong is "quite
low." United States v. Dorsey, 38 MJ 244, 246 (CMA 1993). "The Government
need only show that a trier of fact could reasonably conclude that [appellant]
did commit the act sought to be introduced." United States v. Jones,
32 MJ 155, 157 (CMA 1991), citing Huddleston v. United States, 485
U.S. 681 (1988).
In this case, PVT Joncoaltz testified that
the acts occurred and that they were committed in furtherance of a conspiracy.
His testimony, if believed, was sufficient to satisfy the first prong.
Regarding the alleged threats against PVT Joncoaltz,
the military judge properly balanced the probative value against the prejudicial
impact and gave the members a carefully crafted limiting instruction. Where
a military judge conducts a proper weighing under Mil. R. Evid. 403 and
articulates the reasons for admitting the evidence, we will reverse only
for a clear abuse of discretion. We find no such clear abuse of discretion
in this case.
Some of the evidence at issue in this case,
i.e.,
evidence of acts by appellants co-conspirators, does not fall within the
purview of Mil. R. Evid. 404(b), because the rule is implicated only by
evidence that appellant was the actor. United States v. Cardall,
885 F.2d 656, 671 (10th Cir. 1989), citing Huddleston v.
United States, supra. Admissibility of the evidence of acts
by appellants co-conspirators is evaluated under Mil. R. Evid. 401, 402,
and 403, but not Mil. R. Evid. 404(b). The military judge considered the
relevance of this evidence and properly weighed it under Mil. R. Evid.
403. We hold that he did not abuse his discretion.
Regarding appellants assertion that the military
judge improperly amended the charges, we hold that the military judge did
not err. In United States v. Jefferson, 22 MJ 315, 323-24 (1986),
this Court upheld a conviction for felony-murder, based on vicarious liability.
Chief Judge Everett, speaking for the Court, relied on the statutory authority
of Article 77, UCMJ, 10 USC § 877, which provides as follows:



Any person punishable under this chapter
who--(1) commits an offense punishable by this chapter, or aids, abets,
counsels, commands, or procures its commission; or (2) causes an act to
be done which if directly performed by him would be punishable by this
chapter; is a principal.



Chief Judge Everett observed: "Although Article
77 does not specifically deal with the vicarious liability of a coconspirator,
we believe that the language of Article 77(1) is broad enough to encompass
it." 22 MJ at 324.
This reasoning is consistent with prevailing
federal practice, which permits prosecution on a vicarious-liability theory
even if aiding and abetting or conspiracy are not pled in the indictment.
See
United States v. Washington, 106 F.3d 983, 1011 (D.C. Cir.), cert.
denied, 522 U.S. 984 (1997); United States v. Galiffa, 734 F.2d
306, 313 (7th Cir. 1984). In both Washington and Galiffa,
the trial judge specifically instructed the members on vicarious criminal
liability under the conspiracy theory, and his decision to instruct the
jury on this theory was upheld on appeal.
In United States v. Edmond, 924 F.2d
261, 269 (D.C. Cir.), cert. denied, 502 U.S. 838 (1991), the Court
of Appeals explained that "[i]ndictments do not recite the governments
theory of proof." Instead, "the function of a federal indictment is to
state concisely the essential facts constituting the offense, not how the
government plans to go about proving them." See also Thomas
v. United States, 748 A.2d 931, 934-35 (D.C. 2000).
Appellant relies heavily on United States
v. Pedigo, 12 F.3d 618 (7th Cir. 1993), and United States
v. Keller, 916 F.2d 628 (11th Cir. 1990), cert. denied,
499 U.S. 978 (1991), to support his argument that the military judge impermissibly
expanded the charges. In our view, both cases are inapposite to this case
for two reasons. First, both cases turned on the right to indictment by
grand jury, a right that is specifically made inapplicable to courts-martial
by the language of the Fifth Amendment. Second, both cases are fact-specific
and were reversed because the essential facts alleged in the indictments
were impermissibly changed by each trial judges instructions.
In Pedigo, the court held that the judge
impermissibly expanded the indictment. Pedigo was tried on a 3-count indictment.
Count 1 alleged that he conspired with Bert Merriman to distribute marijuana.
Count 2 alleged that Pedigo possessed marijuana with intent to distribute.
Count 3 alleged that Pedigo used a firearm during "a drug trafficking crime
as
alleged in Count 2, above." (Emphasis in original.) The Government
introduced evidence that Merriman carried a firearm for protection while
he drove a van full of marijuana from Arizona to Michigan. It also introduced
evidence that Pedigo had four firearms in his home at the time that Merriman
brought the first installment of marijuana to Pedigos home to be weighed.
Merriman did not have his firearm with him at Pedigos home. The appellate
court held that it was impermissible for the prosecutor to argue and the
trial judge to instruct the jury that they could find Pedigo guilty of
Count 3 based either on his possession of his own firearms when Merriman
brought the marijuana to his home or Merrimans possession of a firearm
as he brought the marijuana from Arizona to Michigan in furtherance of
the conspiracy. The court interpreted Count 3 of the indictment as limiting
the firearms offense to the conduct alleged in Count 2, based on Count
3s reference to a specific event, "as alleged in Count 2 above." The court
held that to permit the weapons offense to be expanded to Count 1 impermissibly
broadened the indictment. Id. at 631. Because Pedigo is fact-specific,
we do not consider it inconsistent with Galiffa, decided before
Pedigo
in the same circuit.
Keller also is fact-specific. Keller
was charged with conspiring with two named individuals. The trial judge
instructed the jury that they could convict if they found that Keller conspired
with anyone. The appellate court held that the trial judge impermissibly
expanded the indictment by implicitly adding the words, "with other named
and unnamed conspirators" to the indictment. 916 F.2d at 636.
In appellants case, he was charged with a
number of specific offenses, some of which he allegedly committed personally
and some of which he committed vicariously as a member of a conspiracy.
Neither the Government nor the military judge changed the essential facts
alleged. We hold that the military judge did not err by permitting the
Government to prove some of the offenses on a theory of vicarious liability,
even though a conspiracy was not specifically alleged on the charge sheet.
Since we hold that there was no error at all, we do not reach the question
of plain error regarding the instructions.

ISSUE IV: EXCLUSION OF DEFENSE EVIDENCE
Factual Background
The defense theory was that PVT Joncoaltz framed
appellant. The defense theory was also that appellant made several legitimate
TDY trips and that Joncoaltz used the information from those trips to create
other bogus TDY trips in appellants name.
Appellant sought to adduce the testimony of
SSG Summerlin, the Operations Sergeant of 3d Squadron, 3d Armored Cavalry
Regiment (3d ACR), that PVT Joncoaltz told him "not to worry about" a $6,000
TDY overpayment to another soldier since the overpayment "was to the soldiers
benefit." Appellant argued that this evidence supported the defense theory
that PVT Joncoaltz framed appellant by generating and filing fraudulent
TDY documentation in appellants name. According to defense counsels offer
of proof, PVT Joncoaltz did the same thing to appellant when appellant
approached him about suspected TDY overpayments. The military judge asked
defense counsel how he intended to link Joncoaltzs conversation with SSG
Summerlin to the defense theory that Joncoaltz framed appellant. Defense
counsel replied that he probably would do so through appellants testimony.
After hearing the offer of proof, the military
judge made a preliminary ruling that he would not admit SSG Summerlins
testimony concerning the $6,000 overpayment at that point in the trial.
The military judge applied the Mil.R.Evid. 403 balancing test and found
that the probative value of this evidence was "substantially outweighed
by the danger of confusing the issues for the members." The military judge
advised appellant, however, that he would reconsider his ruling if the
defense subsequently established the relevance of the testimony and requested
the military judge to reconsider. Although appellant subsequently testified
in accordance with trial defense counsels offer of proof, appellant did
not ask the judge to reconsider his ruling.
Defense counsel proffered testimony from SSG
Summerlin, as well as Sergeant First Class (SFC) Brown, that it was possible
for one soldier to pick up another soldiers TDY check without having written
authorization to do so. The military judge permitted this testimony.
The military judge permitted the defense to
present the stipulated testimony of Mr. Martinez, a civilian employee of
the finance office, that a check payable to appellant was returned to the
finance office and all funds returned to the United States.
Defense counsel sought to adduce testimony
from a Mr. Maloney that he had observed appellant access his own bank account
without showing identification. Mr. Maloneys position and relationship
to appellant were not mentioned in the defense proffer. Defense counsel
argued this evidence was relevant to show that PVT Joncoaltz could have
deposited the stolen TDY funds in appellants bank account. Trial counsel
asserted, without contradiction by the defense, that Mr. Maloney would
testify only that appellant accessed a statement of the account and that
Mr. Maloney could not testify whether appellant deposited or withdrew any
money. The military judge applied the Mil. R. Evid. 403 balancing test
and excluded Mr. Maloneys testimony at that point in the trial, ruling
that whatever minimal relevance it had was "substantially outweighed by
the danger of unfair prejudice [and] confusion of the issues." The military
judge advised defense counsel, "Now, if you think it becomes relevant at
a later point, raise it." The defense did not raise the issue again.

Discussion
An accused has a constitutional right to present
relevant evidence to defend against the charges. That right, however, "is
not absolute." United States v. Woolheater, 40 MJ 170, 173 (CMA
1994). "Mil. R. Evid. 403 empowers a military judge to exclude relevant
evidence if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the members,
or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence." The burden is on the proponent of the evidence
to show admissibility. United States v. Shover, 45 MJ 119, 122 (1996).
If the military judge weighs the evidence in accordance with Mil. R. Evid.
403 and excludes it, "appellant has the burden of going forward with conclusive
argument that the judge abused his discretion." Id. at 122-23, quoting
United
States v. Mukes, 18 MJ 358, 359 (CMA 1984). We will not reverse unless
appellant persuades us that there was a "clear abuse of discretion."
United
States v. Johnson, 46 MJ 8, 10 (1997).
Where a military judge makes a preliminary
ruling excluding evidence but invites counsel to renew the request at a
later time in the trial, counsels failure to renew the request waives
the issue. United States v. Rockwood, 52 MJ 98, 105 (1999); see
also United States v. Dollente, 45 MJ 234, 240 (1996).
If the issue is not preserved, we review for
plain error. See United States v. Powell, 49 MJ 460 (1998).
The burden is on appellant to persuade us that there was plain error. Id.
at 464-65.
Applying the foregoing principles, we hold
that appellant did not preserve the issue by requesting the military judge
to reconsider after being expressly invited to do so. Even assuming, arguendo,
that the issue was preserved, appellant has not persuaded us that the military
judge clearly abused his discretion. The proffered testimony of SSG Summerlin
was of minimal relevance. The defense failed to establish a link between
Joncoaltzs willingness to help another soldier defraud the United States
and Joncoaltzs alleged scheme to frame appellant.
Likewise, the proferred testimony of Mr. Maloney
fell short of supporting the defense theory. The fact that appellant could
gain access to information about his account falls short of showing that
PVT Joncoaltz could deposit stolen funds in appellants bank account. Furthermore,
Mr. Maloneys proffered testimony was double-edged: if the defense could
show that Joncoaltz could deposit stolen funds in appellants account,
that fact would support the Governments theory that appellant and Joncoaltz
were engaged in a conspiracy to steal money from the United States. The
military judges determination that this evidence should be excluded under
Mil. R. Evid. 403 was clearly within the bounds of his discretion. Thus,
we hold that there was no error at all, much less plain error.

DECISION
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
*All Manual
provisions are cited to the version applicable at trial. The 1998 version
is unchanged, unless otherwise indicated.


EFFRON, Judge (concurring in part and in the
result):
I agree with the result in this case, and with
the analysis of Issue III. I disagree with the analysis of Issues I, II,
and IV to the extent noted herein.

Misconduct committed by others
Issues I and II address the consideration of
misconduct by persons other than appellant. As the majority notes, applicable
case law permits the misconduct of third parties to be considered as evidence
against an accused under a theory of vicarious liability when the misconduct
takes place in the course of a conspiracy to which the accused is a party.
The misconduct of others is relevant and admissible
under the theory of vicarious liability of co-conspirators only to the
extent that the evidence demonstrates that: (1) the act at issue was committed
by a person who was a co-conspirator with appellant, and (2) the act was
committed at a time that appellant was a participant in the conspiracy.
At the outset, it is important to note that the record in the present case
indicates that several of the fraudulent travel vouchers admitted into
evidence against appellant by the military judge were not linked to appellant.
PVT Joncoaltz testified that he did not personally create many of the vouchers
that were admitted into evidence on the basis of his testimony and that
he could only speculate that the documents contained either appellants
or SSgt Benziens signatures.
With respect to appellant's relationship to
any conspiracies, it is important to distinguish between the two primary
types of conspiracy. The first type is a "wheel" or "circle" conspiracy,
in which the person at the center (the hub) deals individually with two
or more other persons (the spokes). In a "wheel" situation, there may be
several conspiracies emanating from a single hub. If the accused is not
at the hub, but is merely one of the spokes, then he or she is not a part
of the conspiracies formed by the other spokes. The second type of conspiracy,
a "chain" conspiracy, involves "successive communication and cooperation"
between a person and the other actors. See 2 W. LaFAVE & A. SCOTT,
SUBSTANTIVE CRIMINAL LAW § 6.5 at 99-102 (2d ed. 1986).
The record does not demonstrate that the purported
conspiracy or conspiracies were of a type that would make appellant liable
for the misconduct of others. In particular, the record does not establish
that the Government's evidence describes a "chain" rather than a "wheel"
conspiracy. On the contrary, the record is consistent with the existence
of a "wheel" conspiracy: it is entirely possible the misconduct at issue
took place in the course of a "wheel" conspiracy with PVT Joncoaltz at
the center of the conspiracy and with appellant possibly involved as a
"spoke" in some, but not all, of the conspiracies emanating from the hub.
See
Kotteakos v. United States, 328 U.S. 750 (1946)(more than one conspiracy
existed where the "hub" had "made fraudulent applications for loans . .
. on behalf of several persons, many of whom had no connection with one
another"); see also United States v. Peoni, 100 F.
2d 401, 403 (2d Cir. 1938)(defendant found "not to be a co-conspirator
with" other actor in "chain" where Government failed to "establish a 'concert
of purpose' between" two actors). See La Fave, supra at 101,
100.
PVT Joncoaltz' testimony described his theft
of $80,000 from the United States through fraudulent TDY vouchers. He noted
that $31,000 was taken in his own behalf, and the remainder was stolen
in connection with appellant, SSG Benzien, PVT Bradley, CPT Demary, and
other individuals. Joncoaltz did not demonstrate that appellant was on
each of the "spokes" represented by these separate conspiracies, nor did
he demonstrate that there was a "chain" conspiracy. Likewise, the testimony
of PVT Bradley and the documents relating to SSG Benzien did not establish
that appellant was on each of the spokes. Although PVT Bradley testified
that appellant created one fake lodging receipt for him, Bradley stated
that he submitted over $10,000 of fraudulent false TDY claims in a scheme
that involved himself and Joncoaltz, with no mention of appellant's involvement.
Documents reflecting SSG Benziens fraudulent TDY trips were admitted as
prosecution exhibits in appellants case, but the record does not demonstrate
what agreement, if any, existed with respect to SSG Benzien and appellant.
In short, the issue is not whether the limiting
instructions provided by the military judge were adequate. The issue is
the failure of the Government to present specific evidence linking each
document admitted against appellant to a separate conspiracy in which he
was a participant.

Relevance of a defense witness
Issue IV concerns the decision of the military
judge to preclude the testimony of a defense witness, Mr. Maloney, who
would have presented evidence that he observed an instance in which a teller
permitted appellant to obtain information regarding his bank account without
requiring appellant to show identification. The military judge excluded
this information on the ground that the evidence was more confusing than
probative under Mil. R. Evid. 403.
Mr. Maloneys observation that appellants
bank did not always require identification for certain acts would have
supported the defenses theory that PVT Joncoaltz could have deposited
certain fraudulent TDY checks into appellants bank account in order to
frame appellant for the travel scheme. It is not apparent what confusion
would be caused by the observation that the bank did not require identification
for certain acts.

Prejudice
Although I would hold that the military judge
erred in admitting certain documentary evidence concerning the misconduct
of others, I would not reverse on that ground. The Government presented
overwhelming evidence of appellants guilt on the charges, particularly
in the form of deposits totaling over $17,000 in his personal bank account
from fraudulent vouchers in his name. In light of this evidence, I would
conclude that the errors were not prejudicial under Article 59(a), UCMJ,
10 USC § 859(a). Likewise, I would hold that the military judge's
exclusion of Mr. Maloney's testimony concerning the practices of the bank
was not prejudicial under Article 59(a). I am confident that his testimony
would have added little to the defense case because it would appear to
be within the realm of common knowledge of the members that many banks
do not require identification prior to acceptance of a deposit.


SULLIVAN, Judge (concurring in the result):
I agree that the lower appellate courts decision
should be affirmed. However, I have some difficulty with the majoritys
joint treatment of the distinct legal issues in this case. I prefer a more
direct analysis of the issues.
With respect to Issue I, I find no error because
the evidence was properly admitted under Mil. R. Evid. 404(b) and because
the probative value of this evidence was not substantially outweighed by
any unfair prejudice under Mil. R. Evid. 403. See United States
v. Smith, 52 MJ 337 (2000); see generally E. Imwinkelried,
Uncharged Misconduct Evidence § 2:05 (1999). With respect to Issue
II, I find no error in admitting proof of an uncharged conspiracy. See
United States v. Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991). With
respect to Issue III, I also find no error in admitting evidence that appellant
threatened prosecution witnesses. See, e.g., United States
v. Monahan, 633 F.2d 984, 985 (1st Cir. 1980); United
States v. Gonzalez, 703 F.2d 1222, 1223 (11th Cir. 1983);
United
States v. Hayden, 85 F.3d 153, 159 (4th Cir. 1996). Regarding
Issue IV, I would hold that the military judge erred in excluding this
testimony under Mil. R. Evid. 403, but such error did not rise to the level
of constitutional error nor did it otherwise prejudice his substantial
rights in a material way. Cf. United States v. Lewis, 51
MJ 376, 383 (1999).


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