

   
   
   
   U.S. v. Jenkins



UNITED STATES, Appellee
v.
Edward L. JENKINS, Sergeant
U.S. Marine Corps, Appellant
 
No. 99-0631
Crim. App. No. 97 1567
 
United States Court of Appeals for
the Armed Forces
Argued March 22, 2000
Decided August 31, 2000
GIERKE, J., delivered the opinion
of the Court, in which EFFRON, J., and TURRENTINE1,
and FITZGERALD2, S.JJ.,
joined. CRAWFORD, C.J., filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant John D.
Holden, JAGC, USNR (argued); Lieutenant M. Eric Eversole, JAGC,
USNR.
For Appellee: Lieutenant Danette
L. Walker, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Lieutenant
Commander Joann W. Melesky, JAGC, USN.
Amici Curiae Urging Reversal: Trevor
Rush (Law Student) (argued); Lieutenant David Volkin, JAGC,
USN (Amicus Curiae Supervising Attorney); Michael Ramsey; Michael
Fernandez, James Golladay, and Michael Yuan (Law Students)
-- For University of San Diego School of Law.
Military Judge: K. B. Martin
 
 


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 37 specifications of larceny, 25 specifications of forgery, and one
specification each of wrongfully using and of making an Armed Forces Identification
Card, in violation of Articles 121, 123, and 134, Uniform Code of Military
Justice, 10 USC §§ 921, 923, and 934, respectively. The adjudged
sentence provides for a dishonorable discharge, confinement for 15 years,
total forfeitures, a fine of $15,000 (enforced by an additional 5 years
of confinement if the fine is not paid), and reduction to the lowest enlisted
grade. The convening authority approved the sentence with a slight modification
of forfeitures. The Court of Criminal Appeals affirmed the findings and
sentence. 50 MJ 577 (1999).
Our Court granted review of two issues:


I
WHETHER THE LOWER COURT ERRED IN FINDING
NO PREJUDICE WHERE THE TRIAL COUNSEL COMMITTED PLAIN ERROR BY REPEATEDLY
ASKING APPELLANT ON CROSS-EXAMINATION WHETHER NUMEROUS WITNESSES WHO HAD
TESTIFIED INCONSISTENTLY WITH APPELLANT WERE LYING.

II
WHETHER TRIAL COUNSEL COMMITTED PLAIN
ERROR BY ARGUING FOR INCREASED PUNISHMENT BECAUSE APPELLANT PURPORTEDLY
TESTIFIED FALSELY.

For the reasons set out below, we affirm.3

ISSUE I: TRIAL COUNSELS CROSS-EXAMINATION
Facts
Appellant was the supply sergeant at
Separations Company, Camp Pendleton, California. Marines who were being
discharged were out-processed by Separations Company. They would receive
a final accounting of pay, after which Separations Company personnel would
mail a final pay check to the discharged Marine. The theory of the prosecution
was that appellant stole those final pay checks before they were mailed,
then either cashed them or procured others to cash them, using fraudulent
Armed Forces Identification Cards.
Chief Warrant Officer (CWO) Gorman,
executive officer of Separations Company, testified that one of appellants
duties was to compile the "shopping list" of supplies requested by members
of the company. The prosecution presented documentary evidence showing
that appellant ordered and received a package of 100 blank Armed Forces
Identification Cards, but the identification cards were never received
by Separations Company. The supply documents appear to bear the signatures
of CWO Gorman, as the officer requesting the identification cards, and
Staff Sergeant (SSgt) Garza, chief of administration, acknowledging receipt
of the cards. Both CWO Gorman and SSgt Garza testified that they did not
sign the documents.
Naval Criminal Investigative Service
(NCIS) Special Agent (SA) McKenzie testified that appellant was questioned
about the missing identification cards and consented to a search of his
off-base residence. During the search, NCIS agents found a blank identification
card inside a record album. Inside a large vase the agents found a manila
envelope containing three partial identification cards bearing the names
of three of the alleged victims and small pieces of other identifications
cards. The envelope also contained a cut up identification-card photo of
Sergeant (Sgt) Spencer, one of appellants alleged co-actors, and a partial
identification-card photo of appellant. The back of the envelope contained
"practice signatures." The NCIS agents also found lamination material in
a dining room closet and an identification-card-sized photograph of appellant
in a wall unit in the living room.
The NCIS agents also searched appellants
personal vehicle. In a storage pouch at the rear of the drivers seat they
found a copy of the document requesting issuance of the blank identification
cards, purporting to bear CWO Gormans and SSgt Garzas signatures.
Corporal (Cpl) Saenz-Ortega testified
about the procedures used by Separations Company to issue and mail pay
checks. He described one occasion when a check was discovered missing and
was later recovered by appellant from a trash can in front of another building
and turned in to CWO Gorman.
All three of appellants co-actors
testified against him pursuant to grants of immunity. Patricia Gibson,
a civilian payroll technician, testified that she and appellant became
friends and that the friendship evolved into an "intimate relationship."
She testified that, at appellants request, she endorsed the backs of a
number of Treasury checks made out to various individuals and signed several
identification cards.
Former-sergeant Jessie James Spencer
testified that when discharged Marines started calling Separation Company
about missing checks, he suspected that appellant was stealing them. His
suspicions arose because appellant seemed to have a lot of money and because
he observed what appeared to be a surreptitious conversation between appellant
and Cpl Kevin Lynk. He told appellant that he "wanted in." Spencer described
how he and appellant stole the checks from the outgoing mail, made phony
identification cards reflecting the names of the payees on the stolen checks,
and cashed the checks.
Former-corporal Kevin Lynk testified
that he worked for appellant for a year. He testified that appellant asked
him to cash a check that had been returned to the company. He agreed after
appellant "persistently asked [him] for about two weeks." Appellant used
the Polaroid camera from the company to take Lynks photograph and then
made him a phony identification card. Lynk used the phony identification
card to cash the check and shared the proceeds with appellant. Lynk subsequently
cashed two more checks for appellant and shared the proceeds with him.
There was no dispute that the checks
had been stolen and forged. Nevertheless, the prosecution presented expert
testimony and documentary evidence establishing that the named payees did
not endorse the checks, and the defense so stipulated. In addition, the
prosecution presented evidence that appellants fingerprints were identified
on a small piece of paper in the vase containing the pieces of identification
cards and cut-up photographs, and on 12 of the forged checks. Spencers
fingerprints were identified on seven forged checks.
The defense theory, articulated in
civilian defense counsels opening statement, was that Spencer and Lynk
were involved in a conspiracy to cash government checks, that they "became
the object of suspicion," and that they decided to frame appellant to "get
the heat or the trail off of them." With respect to Ms. Gibson, the defense
theory was that she was "the spurned woman" who was jealous because appellant
became involved with another woman.
Appellant testified in his own defense.
He testified that the vase containing the evidence seized by the NCIS agents
was in his office until April of 1996, when he moved it and a number of
other personal items from his office to his residence. He testified that
Ms. Gibson helped him by transporting the items, including the vase, in
her car while he rode his motorcycle to his home.
He testified that he was in the bathroom
when NCIS agents removed the brown envelope from the vase. He stated that
he did not know how the envelope was placed in the vase. He speculated
that it must have happened at work.
Appellant explained his fingerprints
on the forged checks by testifying that he handled checks by assisting
Sgt Spencer sort the incoming mail. The checks were in "return to sender"
mail, which appellant and Sgt Spender opened and sorted.
Appellant denied taking checks or mail
from the outgoing mail box. He denied cashing any of the checks. He denied
sharing in the proceeds of any of the checks. He denied having any "clandestine
meetings" with Lynk.
Appellant admitted obtaining the blank
identification cards. He testified that CWO Gorman told him to take the
"shopping list" to supply and that the list was already prepared.
Regarding the missing-check incident
described by Cpl Saenz-Ortega, appellant testified that all the Marines
in the company were assembled because of the missing check. After they
were released, appellant "took it upon [himself] to check the trash cans"
around "an abandoned building." He testified that he saw the check in the
trash can, brought the entire trash can back to the company, and watched
while CWO Gorman, in the presence of the first sergeant and the Military
Police, retrieved the check from the trash can.
Appellant testified that when he returned
from supply with the blank identification cards, he gave them and the paperwork
to Cpl Lynk and instructed him to take the identification cards to the
administration area and to bring back the receipt. Cpl Saenz-Ortega placed
the receipt in appellants mail box in the administration section. Appellant
denied signing SSgt Garzas name on the receipt for the blank identification
cards.
The questions forming the basis of
the first granted issue occurred during cross-examination of appellant.
Trial counsel asked four times if CWO Gorman was lying when he said that
it was appellants job to type the "shopping list." Appellant responded
that CWO Gorman did not know who typed the list. He testified that some
of CWO Gormans testimony was incorrect, because CWO Gorman changed the
procedures. Trial counsel asked once if CWO Gorman was lying when he testified
that picking up blank identification cards was one of appellants "main
duties." Appellant responded that CWO Gorman was not lying.
Trial counsel asked if Cpl Saenz-Ortega
was lying when he testified that "there was no trash can involved" in the
recovery of the missing check. Appellant responded without characterizing
the truthfulness of Saenz-Ortegas testimony; he testified, "Maam, there
was a trash can involved in the situation."
Trial counsel asked three times if
government witnesses were lying when they testified that appellant was
not authorized to touch the Treasury checks. Appellant responded that he
did not know if they were lying because he did not know if he was authorized
to handle the checks.
Trial counsel asked five times if Cpl
Lynk was lying when he testified that appellant gave him checks and "hounded
him" to cash them. Appellant responded that Lynk was lying. Trial counsel
asked if Lynk was lying when he testified that he had never seen the record
album where the blank identification card was found, and appellant again
responded that Lynk was lying.
Trial counsel asked if Ms. Gibson "made
those events up," meaning her involvement in the endorsement of checks
and preparation of a phony identification card, and appellant responded,
"Yes, maam." Trial counsel asked if Ms. Gibson was lying when she testified
that appellant gave the "other woman" $5000 to purchase a car, and appellant
responded, "Yes, maam."
Trial counsel asked five times if former-sergeant
Spencer was lying. Appellant responded in the affirmative.
Finally, trial counsel asked six times
if SA McKenzie was lying about finding the envelope in the vase in appellants
presence. Appellant responded in the affirmative.
Defense counsel did not object to any
of the questions about lying, except on one occasion when he objected on
the ground that the question was "vague as to lying" and the judge sustained
the objection.
Closing arguments focused on credibility
of the witnesses and appellant. Trial counsels argument included the following:



Gentlemen, as the factfinders, its
going to be your duty to judge the credibility of the witnesses.
Consider what they said in the courtroom
today and over the last three days. Consider the demeanor of all of those
that youve seen in the courtroom. When you consider that, you consider
who was the slickest witness you saw was [sic]. You consider who had the
ready answer to every question.

* * *
The evidence is before you. The evidence
is black and white. If all these people came in here and lied, the thiefs
a liar too. There is only one conclusion, gentlemen. The thief and a liar
is guilty of each and every one of those offenses before you on that charge
sheet.



Defense counsels closing argument included
the following:



I think Patricia Gibson has some
feelings for my client. And in these domestic type of situations, hell
hath no fury like a woman -- a spurned woman.

* * *
My clients the only one who said,
"I didnt do it. These guys did it, and theyre framing me."



The Court of Criminal Appeals held that
trial counsels cross-examination constituted "clear and obvious error,"
but "these questions nonetheless did not materially prejudice the
substantial rights of appellant." (Emphasis in original.) The court found
the Governments evidence overwhelming and concluded that "the errors were
harmless under the particular facts of this case." 50 MJ at 580.
Appellant now asserts that the court
below erred by finding that the errors were harmless. He argues that his
"entire defense rested upon his own credibility" and that trial counsels
improper cross-examination "struck at the very heart of this defense and
undermined Appellants entire case." Final Brief at 4.
The Government asserts that trial counsels
cross-examination was not error at all, much less plain error. Answer to
Final Brief at 2.
Amicus curiae assert
that trial counsels questions were improper because they infringed on
the court members role in determining the credibility of witnesses, that
the Governments case was not overwhelming, and "that the error materially
prejudiced" appellants "right to a fair trial." Amicus Brief at 1.

Discussion
Mil. R. Evid. 608(a), Manual for Courts-Martial,
United States (1995 ed.),4
permits the credibility of a witness to be attacked or supported by evidence
in the form of an opinion, but the evidence may refer only to the witness
character for truthfulness or untruthfulness. This Court has consistently
held that a witness may not opine that another witness is lying or telling
the truth. See, e.g., United States v. Birdsall, 47
MJ 404, 410 (1998); United States v. Marrie, 43 MJ 35, 41 (1995).
The basis for this rule was set out in United States v. Cameron,
21 MJ 59, 63 (1985), where this Court reitereated:



The rule remains that, absent unusual
circumstances, opinion testimony on whether or not to believe a particular
witness testimony simply is not deemed helpful to the factfinder, for
the factfinders are perfectly capable of observing and assessing a witness
credibility.



This Court has not directly addressed
the question whether it is improper for trial counsel to ask an accused
to opine whether the government witnesses against him are lying. The Second
Circuit addressed the issue, however, in United States v. Richter,
826 F.2d 206, 208 (1987). That court held that "[p]rosecutorial cross-examination
which compels a defendant to state that law enforcement officers lied in
their testimony is improper." In Richter, the prosecutor not only
asked the defendant if the FBI agent was lying, he also called another
FBI agent to corroborate the first agents testimony, "which the prosecutor
already had forced the defendant to label" as a lie. The prosecutor then
compounded the error in his final argument, focusing on the differences
between the testimony of Richter and the FBI agents and arguing that "if
[the jurors] find that the FBI agents are telling the truth, then Mr. Richter
is guilty and his guilt has been established." The prosecutor concluded
by rhetorically asking the jury why two experienced FBI agents would "commit
perjury and risk their careers to get Mr. James Richter." 826 F.2d at 208-09.
The court found "plain and prejudicial error" and reversed. 826 F.2d at
207.
In subsequent cases, the Second Circuit
has adhered to the basic principle that it is improper for a prosecutor
to compel a defendant to state that the law enforcement officers testifying
against him or her are lying. The court has made clear, however, that each
case must be analyzed to determine if the improper cross-examination was
prejudicial. See United States v. Gaind, 31 F.3d 73, 77 (1994);
United States v. Weiss, 930 F.2d 185, 195, cert. denied,
502 U.S. 842 (1991); United States v. Scanio, 900 F.2d 485, 492-93
(1990), overruled on other grounds, Ratzlaf v. United States,
510 U.S. 135, 136 n.1 (1994); see generally United States v.
Williamson, 53 F.3d 1500, 1522-23 (10th Cir. 1995) (analyzing
Second Circuits application of Richter).
Three other circuits have expressly
adopted the Richter principle. See United States v. Sanchez,
176 F.3d 1214, 1219 (9th Cir. 1999); United States v. Sullivan,
85 F.3d 743, 749-50 (1st Cir. 1996); United States v. Boyd,
54 F.3d 868, 871 (D.C. Cir. 1995). In Williamson, supra at
1523, the Tenth Circuit declined to decide whether to adopt the Richter
principle, but remarked that it was "not particularly persuaded by the
reasoning of the court in Richter." In United States v. Bryant,
770 F.2d 1283, 1291 (5th Cir. 1985), cert. denied, 475
U.S. 1030 (1986), the Court of Appeals held:



We cannot say that Bryant is prejudiced
when he is given an opportunity to affirm that contradictory testimony
is fallacious. The error, if any, is harmless.



United States v. Cole, 41 F.3d
303, 309 (7th Cir. 1994), cert. denied, 516 U.S. 826
(1995), appears to have carved out an exception to the Richter principle.
The court acknowledged that credibility of witnesses is the province of
the jury, but held that it was not improper to ask the defendant if the
witnesses against him had any motive to lie after he opened the door on
direct examination by repeatedly raising "questions of the character and
credibility of government witnesses."
In our view, the Richter principle,
applied on a case-by-case basis, represents the weight of authority and
is consistent with our jurisprudence. Applying that principle, we conclude
that there was no plain error.
With respect to trial counsels questions
whether appellants three co-actors (Spencer, Lynk, and Gibson) were lying,
we conclude that appellant was not prejudiced. Defense counsel announced
in his opening statement that appellant was framed by Spencer and Lynk.
He asserted that Gibson was a "spurned woman," implying that she was bent
on revenge. Defense counsel adhered to this theme in closing arguments.
For trial counsel to force appellant to acknowledge under oath what his
counsel had already asserted was harmless error. See United States
v. Cole, supra.
With respect to the questions whether
CWO Gorman was lying, appellant did not take the bait. He refused to call
CWO Gorman a liar, insisting instead that CWO Gorman did not know who typed
the shopping lists and that CWO Gorman changed the procedures. While the
questions were improper, the answers were harmless.
Similarly, with respect to questions
regarding appellants fingerprints on the checks, appellant declined to
call the witnesses against him liars, testifying that he did not know if
he was authorized to handle the checks. Regarding the question whether
appellant brought the entire trash can containing a missing check to the
company offices, he declined to call Cpl Saenz-Ortega a liar. Instead,
he simply insisted, "Maam, there was a trash can involved in the situation."
Finally, even though appellant was
induced to testify repeatedly that SA McKenzie was lying, we hold that
the error was harmless. Appellant did not dispute that the agents found
the envelope somewhere, and, consistent with his theory that he was framed,
he speculated that it must have been placed in the vase at work. He also
suggested that Ms. Gibson had the opportunity to plant the envelope in
the vase when she transported his personal effects from his office to his
residence.
In summary, the record shows that appellant
was confronted with the testimony of his three co-actors, corroborated
by the physical evidence seized from his residence, documentary evidence
in his car, and his fingerprints on 12 of the forged checks. His defense
was that his co-actors were lying in an effort to frame him. Trial counsels
questions, although improper, merely reinforced the defense theory. Under
these circumstances, we hold that the court below did not err when it concluded
that appellant was not prejudiced by trial counsels improper cross-examination.

ISSUE II: TRIAL COUNSELS SENTENCING
ARGUMENT
Facts
Trial counsels sentencing argument
included the following comments:



Trust and honor. You heard those
words from several people who came in this courtroom. Not from the accused.
Trust and honor are what Marines stand proud on. Trust and honor.

* * *
The Marine Corps trusted a sergeant.
Trusted a sergeant with numerous responsibilities. What did he do? He took
advantage of Separations Company. He took advantage of each and every Marine
in that company when he fooled them, and then he came up here and he lied
about their involvement.
He lied about Corporal Saenz-Ortega
and Corporal Thomas . . . .
Think about those Marines and how they
feel being investigated. Theyre responsible for those checks. Consider
that. Consider those junior Marines. Hes a thief and a liar whos taken
advantage of them.

* * *
Hes a thief, a liar, and the ringleader
who was involving other Marines in his acts. And he was stealing from Marines
who had served honorably.

* * *
You, as members, are going to determine
his fate. Hes a thief and a liar . . . .

* * *
Consider: "Ye shall not steal, neither
deal falsely, neither lie one to another." Leviticus, Chapter 9, Verse
11 . . . .

* * *
The Marine Corps does, in fact, stand
for honor. It stands for trust. It stands for everything that we in the
Marine Corps are proud of.

* * *
Dishonorable Discharge is the only
way this Marine should get out of the Marine Corps.
He lied to you, gentlemen. He lied
on that stand, and he lied to you. Each and every one of you, he lied to
you. Dishonor. Dishonorable discharge.
He has no rehabilitative potential.
No way. And hes got to be punished.
Punish him with confinement. Twenty-five
victims, 25 checks, 25 years. Twenty-five years, and you send that message
to each and every Marine at Camp Pendleton. Twenty-five years, and its
going to hit him that hes actually done something wrong.

* * *
Fine him. Fine him. Fine this thief,
and fine this liar. Fine him $50,000.
Twenty-five years confinement; a dishonorable
discharge; and $50,000 fine for everything that hes done to malign the
United States Marine Corps, for the horrible example that he has set, what
society have seen. And send that message to those sergeants in the Marine
Corps, to everyone in the Marine Corps, that what it means to be a Marine
is something sacred and important.
Thank you, gentlemen.



Defense counsel did not object to any
of the above comments or request a curative instruction. Defense counsel
did object, however, to trial counsels asking the members to think about
the impact on other Marines who were investigated as a result of appellants
misconduct. The military judge sustained this objection and gave a curative
instruction.
The military judges instructions on
sentencing included the following limiting instructions:



No person, including the accused,
has the right to seek to alter or affect the outcome of a court-martial
by false testimony. You're instructed that you may consider this issue
only within certain constraints.
First, this factor should play no role
whatsoever in your determination of an appropriate sentence unless you
conclude that the accused did lie under oath to the court.
Second, such lies must have been in
your view willful and material before they can be considered in your deliberations.
Finally, you may consider this factor
insofar as you conclude that it, along with all other circumstances in
the case, bears upon the likelihood that the accused can be rehabilitated.
You may not mete out additional punishment
for the false testimony itself.
During argument, trial counsel and
defense counsel recommended that you consider a specific sentence or parts
of the sentence in this case. Youre advised that the arguments of counsel
and their recommendations are only their individual suggestions and may
not be considered as the recommendation or opinion of anyone other than
such counsel.



Appellant and amicus curiae
now argue that trial counsels sentencing argument was plain error, because
she improperly asked the members to punish appellant for lying. Final Brief
at 10-11; Amicus Brief at 13. At one point in its brief, the Government
concedes that the argument was improper, but argues that it does not rise
to the level of "plain error because appellant suffered no prejudice."
Answer at 3. At another point, however, the Government asserts that "trial
counsels argument was not error." Answer at 10.

Discussion
It is well established that "a trial
counsel may strike hard blows, [but] he [or she] is not at liberty to
strike foul ones." United States v. Stargell, 49 MJ 92, 93 (1998),
quoting Berger v. United States, 295 U.S. 78, 88 (1935). RCM 1001(g),
Manual, supra, provides: "Failure to object to improper argument
before the military judge begins to instruct the members on sentencing
shall constitute waiver of the objection." To overcome waiver, appellant
must convince this Court that the argument was error, that the error was
plain or obvious, and that the error materially prejudiced his substantial
rights. United States v. Powell, 49 MJ 460, 464-65 (1998).
In United States v. Warren,
13 MJ 278 (1982), this Court held that an appellants mendacity may be
considered in sentencing, subject to certain limitations. When sentencing
is by members, the military judge must instruct the members that they may
not consider trial counsels mendacity argument "unless they conclude that
the accused did lie under oath to the court" and that "such lies
must have been, in [the members] mind, willful and material." Finally,
the members may consider an accuseds mendacity "only insofar as they conclude
that it, along with all the other circumstances in the case, bears upon
the likelihood that the accused can be rehabilitated." The court members
"may not mete out additional punishment for the false testimony
itself." 13 MJ at 285-86 (all emphasis in original).
Court members are presumed to follow
the military judges instructions. See United States v. Garrett,
24 MJ 413, 418 (CMA 1987), citing United States v. Ricketts, 1 MJ
78, 82 (CMA 1975). This Court has recognized that an improper argument
can often be cured by an appropriate limiting instruction. See,
e.g., Stargell, 49 MJ at 94; United States v. Vasquez,
48 MJ 426, 430 (1998).
Applying the foregoing principles to
trial counsels argument in this case, we hold that there was no plain
error. Although trial counsel repeated called appellant a thief and a liar,
defense counsel did not find the argument sufficiently offensive to warrant
an objection or a request for a curative instruction. The military judges
detailed and appropriate limiting instruction cured any possible error
in trial counsels sentencing argument.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Senior
Judge Howard B. Turrentine of the United States District Court for the
Southern District of California, sitting by designation pursuant to Article
142(f), UCMJ, 10 USC § 942(f).
2
Senior
Judge James M. Fitzgerald of the United States District Court for the District
of Alaska, sitting by designation pursuant to Article 142(f), UCMJ, 10
USC § 942(f).
3
We heard oral argument in this case at the University of San Diego Law
School, San Diego, California, on March 22, 2000, as part of our "Project
Outreach." See United States v. Allen, 34 MJ 228, 229 n.1
(CMA 1992).
4All
Manual provisions are cited to the version applicable at trial. The 1998
version is unchanged, unless otherwise indicated.


CRAWFORD, Chief Judge (concurring in
the result):

FACTS
When cross-examining appellant, the
prosecutor asked on numerous occasions whether the other witnesses were
lying. On only one occasion did defense counsel deem it necessary to interpose
an objection, and then the objection was only as to vagueness regarding
"lying," which was sustained by the judge. The issue in this case centers
around that cross-examination.

ANALYSIS
Issue I is a simple question on its
face, but an extremely complex matter when analyzed. First, there is the
constitutional issue of whether cross-examination which asks a criminal
defendant to state that prosecution witnesses are lying infringes upon
the Fifth Amendments prohibition against compelled testimony. I find no
constitutional violation in this case.

I. THE FIFTH AMENDMENT
There are at least two interpretations
of the Fifth Amendment prohibition. The first is that it gives an individual
the "unfettered" right to exercise his own free will to speak. Miranda
v. Arizona, 384 U.S. 436, 460 (1966), quoting Malloy v. Hogan,
378 U.S. 1, 8 (1964). The second recognizes that it only prohibits compulsion
and coercion. See Joseph D. Grano, Confessions, Truth, and the
Law 141-43 (1993).
The Fifth Amendment firmly states that
no person shall be compelled in any criminal case to be a witness against
himself. A person who voluntarily testifies gives up this Fifth Amendment
protection. There are several Supreme Court cases which illustrate this
waiver principle.
The Amendment does not say that if
the witness is questioned pretrial, or I would suggest at trial, he or
she cannot be questioned concerning his or her non-verbal communication.
A party should be able to ask about circumstances and inferences from circumstances
that the jurors could draw upon if left to their own conclusions. If silence
"[f]rom time immemorial" may be evidence of guilt, as it was in State
v. Bartlett, 55 Me. 200, 217 (1867), certainly the timing of silence
may or may not be the same. While the Supreme Court has remarked on the
inviolability of the human personality, Murphy v. Waterfront Commission
of New York Harbor, 378 U.S. 52, 55 (1964), the Court has also recognized
that the privilege against self-incrimination does not apply if an individual
has been given immunity to protect the individual from having a properly
seized diary admitted in evidence against him. In the end, the Fifth Amendment
protects against compulsion and coercion. When and if to testify is a decision
to be made by the accused and his or her attorney.
The lesson that one can draw from years
of precedents is that the Supreme Court seeks only to eliminate coerced
confessions. Coercion is not present here. If coercion were present, it
could be detected by the factfinder. Here, appellant did not exercise his
constitutional privilege of silence either during the pretrial stages of
the case or at trial itself. Thus, even under the most protective view,
that is protecting the exercise of free will, there can be no violation
of the Fifth Amendment or Article 31, UCMJ, 10 USC § 831, in this
cross-examination. As we have recognized in United States v. Solis,
46 MJ 31 (1997), there are two choices: remain silent or tell the truth.
Here, appellant sought to take a third road. Once he did, it was not only
proper to comment on the improper conduct, but also the burden was on the
Government to prove that conduct beyond reasonable doubt.

II. GRIFFIN TO MITCHELL
In 1965 the Supreme Court held that
prosecutorial or judicial comment on the defendants refusal to testify
violated his Fifth Amendment privilege. Griffin v. California, 380
U.S. 609 (1965). To invite a factfinder to draw an inference adverse to
a defendant, solely on account of the defendants assertion of a constitutional
right (refusal to testify), impermissably burdens the free exercise of
the right.1
One year later in Miranda, supra
at 444, the Court extended this right to "custodial interrogation" by law
enforcement officials. Cf. Dickerson v. United States, 120
S. Ct. 2326 (2000). However, statements made after proper warnings in response
to police interrogation could be used against a suspect at trial as part
of the prosecutions case. Similarly, the Court has held that a testifying
defendant could be cross-examined about his pretrial silence when there
properly have been no prior rights warnings, including informing the defendant
of the right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976);
see also Fletcher v. Weir, 455 U.S. 603 (1982).
In 1980 the High Court held that a
defendant who chooses to make a statement after appropriate warnings may
be impeached at trial with the content of that pretrial statement and will
not be able to assert that any inconsistency or omission was a partial
invocation of his right under the Fifth Amendment. Anderson v. Charles,
447 U.S. 404 (1980); see also Raffel v. United States,
271 U.S. 494 (1926) (a defendant who did not testify at his first trial
but did testify at the second trial can be cross-examined concerning his
failure to testify at the prior trial on the same charge).
In Mitchell v. United States,
526 U.S. 314, 329, 119 S. Ct. 1307 (1999), the Court, in a 5-4 opinion,
declined to retreat from Griffin and Estelle v. Smith, 451
U.S. 454 (1981), and held that Mitchell retained the privilege against
compelled self-incrimination at her sentencing hearing even though she
had pled guilty. Justice Scalia authored the dissent, rejecting the extension
of what the author found to be historically flawed logic in Griffin
to the penalty phase of a trial. 526 U.S. at 332. The dissent argued that
exercising ones constitutional rights and privileges should not require
someone to ignore logical inferences that might flow therefrom. Id.
at 341.

III. PORTUONDO V. AGARD
A year later, in Portuondo v. Agard,
120 S. Ct. 1119 (2000), the Supreme Court in a 7-2 decision authored by
Justice Scalia held that there was no constitutional violation for the
prosecutor to argue that the accused, even though required to be present
at trial under state law, testified last so he could tailor his testimony.
Justice Scalia noted that the defendants
"argument boils down to a request ... [to] extend ... the rationale of
Griffin." The Court declined to accept this invitation. Id.
at 1123. Justice Scalia placed the burden on a defendant who claims a constitutional
violation to show historically that the comments made in this case were
not appropriate. He remarked:

Lacking any historical support for
the constitutional rights that he asserts, respondent must rely entirely
upon our opinion in Griffin. That case is a poor analogue, however,
for several reasons. What we prohibited the prosecutor from urging the
jury to do in Griffin was something the jury is not permitted
to do. The defendants right to hold the prosecution to proving its
case without his assistance is not to be impaired by the jurys counting
the defendants silence at trial against himand upon request the court
must instruct the jury to that effect. . . .

Id. at 1124 (emphasis in original).
He also noted that the jury could consider
that appellant was tailoring his testimony; thus, it would be natural to
question the defendant about it. "By contrast, it is natural and
irresistible for a jury, in evaluating the relative credibility of a defendant
who testifies last, to have in mind and weigh in the balance of fact that
he heard the testimony of all those who preceded him." (Emphasis in original.)
The jury should not be required to "blot[ ] out from its mind the fact
that before giving the testimony the defendant had been sitting there listening
to the other witnesses." Id. at 1124. Justice Scalia noted: "The
dissent seeks to place us in the position of defending the proposition
that inferences that the jury is free to make are inferences that the prosecutor
must be free to invite." He goes on: "Similarly, the dissent seeks to place
us in the position of defending the proposition that it is more natural
to infer tailoring from presence than to infer guilt from silence." He
continued that "[t]he quite different point we do make is that inferring
opportunity to tailor from presence is inevitable, and prohibiting
that inference (while simultaneously asking the jury to evaluate the veracity
of the defendants testimony) is demanding the impossible  producing the
other alternative respect in which this case differs from Griffin."
Id., n.1 (emphasis in original).
The Portuondo majority rejected
the argument that Brooks v. Tennessee, 406 U.S. 605 (1972), was
to the contrary. 120 S. Ct. at 1125-26. There the Court found it to be
unconstitutional to require the defendant to testify first. The Court also
rejected the argument that the questions and argument "were impermissible
because they were generic" and not "based upon any specific indication
of tailoring." Id. at 1126.
Justice Scalia remarked that the majority
was ruling on a constitutional question and not on what is "a matter of
sound trial practice." He would leave for another day the question of what
judicial instructions would be best under these circumstances. Id.
at 1127 n.4.
Justice Ginsburg dissented and asserted
that the "Court of Appeals took a carefully restrained and moderate position
in this case." Id. at 1130. She said:



A prosecutor who wishes at any stage
of a trial to accuse a defendant of tailoring specific elements of his
testimony to fit with particular testimony given by other witnesses would,
under the decision of the Court of Appeals, have leave to do so. Moreover,
on cross-examination, a prosecutor would be free to challenge a defendants
overall credibility by pointing out that the defendant had the opportunity
to tailor his testimony in general.... Thus, the decision below would rein
in a prosecutor solely in situations where there was no particular reason
to believe that tailoring has occurred and where the defendant has no opportunity
to rebut the accusation.



* * *



If accused on cross-examination of
having tailored their testimony, those defendants might display signals
of untrustworthiness that it is the province of the jury to detect and
interpret.
But when a generic argument is offered
on summation, it cannot in the slightest degree distinguish the guilty
from the innocent. It undermines all defendants equally and therefore does
not help answer the question that is the essence of a trials search for
truth: Is this particular defendant lying to cover his guilt or truthfully
narrating his innocence?
In addition to its incapacity to serve
the individualized truth-finding function of trials,
a generic tailoring argument launched
on summation entails the simple unfairness of preventing a defendant from
answering the charge.... A prosecutor who can withhold a tailoring accusation
until summation can avert such a rebuttal.



Id. at 1130-31 (citation omitted).
Under either the majority or dissenting
views in Portuondo, there was no violation of Jenkins Fifth Amendment
right in this case.

SIXTH AMENDMENT
There is a cluster of rights that exists
in the Sixth Amendment, including the right to know "the nature and cause
of the accusation," the right of confrontation, and the right of compulsory
process. These rights center on the right to a fair trial, truth seeking,
and the presumption of innocence. The right of confrontation is the Public
Trial Clause that protects both defendants and the public at large. The
key purpose of the Confrontation Clause - to discourage deliberate perjury
by prosecution witnesses and to allow a defendant to hear witnesses stories
- may help an innocent defendant to determine why a witness is mistaken.
In this respect, the Confrontation Clause amplifies the theme of knowing
the "nature and cause of the accusation."
The Confrontation Clause allows the
defendant not only to hear the witness story, but also to question and
cross-examine on what the witness has said. Because the Confrontation Clause
focuses on truth finding, it has as its neighbor the Compulsory Process
Clause.
The Supreme Court has stated "the Confrontation
Clauses very mission" is promoting "the accuracy of the truth-determining
process in criminal trials." Tennessee v. Street, 471 U.S. 409,
415 (1985), quoting Dutton v. Evans, 400 U.S. 74, 89 (1970).
While the Clauses seem clear on their
face, sometimes their interpretation and logic are not always so clear.
One of the reasons the defendant is
present is to hear the witnesses and determine whether they are mistaken.
Certainly, the jury is going to contrast what the witnesses are saying
and contrast their testimony with that of the defendant who takes the witness
stand. While the prosecutor may not use silence against the defendant,
this does not mean the defendant who is there to question the witnesses
cannot be asked about it.
It also should be noted that the Supreme
Court has indicated: "The primary object of the [Confrontation Clause]
was to prevent depositions or ex parte affidavits ... being used
against the prisoner in lieu of a personal examination and cross-examination
of the witness[.]" Mattox v. United States, 156 U.S. 237, 242 (1895).
Under the Compulsory Process Clause
the witness can be brought in and questioned against his or her will, but
that does not mean that the prosecution may not pit the witness against
the defendant who eventually decides to testify. One of the major purposes
of the Sixth Amendment is to deter and detect perjury and other frauds
that are perpetrated upon the trier of fact.
However, this is not a Sixth Amendment
case at all. This is a case about an accused electing to testify and about
a prosecutor confronting, through cross-examination, that accused to ensure
the integrity of the factfinding process. This is exactly what a trial
is all about.
Trial counsel never asked appellant
whether he had doctored up his testimony after listening to all of the
witnesses that had gone before him. What the prosecutor did through her
questioning of the accused was analogous to commenting on the testimony
of others and the reasonable inferences that a factfinder could draw from
that testimony. As the case of People v. Buckey, 378 N.W. 2d 432
(Mich. 1985), shows, a prosecutor can always comment on testimony, draw
inferences from it, and argue that any witness, including the defendant,
is not worthy of belief, which means theyre lying.
Here the court members sat through
all of the testimony from the government and defense witnesses. Testimony
from the government witnesses was diametrically opposed to that given by
appellant. The only logical inference that could be drawn at this stage
of the trial was that somebody was not telling the truth, i.e.,
was prevaricating. The fact that somebody was lying is not only a reasonable
inference, but it is the only logical inference. Accordingly, asking
the accused who is telling the truth cannot possibly violate any constitutional
norm or disparage the accused for exercising one of his constitutional
rights.
The most troubling aspect of this case
is the lower courts finding that the type of cross-examination used by
the prosecutor, asking appellant on several occasions whether the other
government witnesses were "lying" when they testified in the Governments
case, and asking appellant on three other occasions if the witnesses made
their testimony up, was improper. The lower court held that "[c]ross-examination
which compels an accused to state that prosecution witnesses are lying
is improper impeachment and opinion testimony. As such it was inadmissible
under Military Rule of Evidence 402." The lower court cited Floyd v.
Meachum, 907 F.2d 347, 354-55 (2d Cir. 1990), as authority for this
proposition. 50 MJ at 580.
The Court of Criminal Appeals has misread
that case. In Floyd, the crux of the prosecutors misconduct was
to use "repeated references to the Fifth Amendment" to draw attention to
the accuseds election not to testify. 907 F.2d at 353. More to the point,
the prosecutor in Floyd "characterized" the defendant, "who did
not testify, as a liar literally dozens of times" throughout her
summations. Id. at 354 (emphasis added). Finally, the prosecutors
arguments attempted somehow to use Floyds pretrial statements to dilute
her burden to prove him guilty beyond a reasonable doubt. Id. at
354.
I am satisfied that there was no error
in trial counsels asking this appellant, albeit repetitiously, whether
the Governments witnesses were liars. All she was doing is asking him
if he really meant what he was saying.

PROSECUTORIAL MISCONDUCT
The majority decides this case on the
issue of prosecutorial misconduct, and having adopted the rationale of
United States v. Richter, 826 F.2d 206 (1987), applies Richters
principles to this case. I find it unnecessary to adopt Richter.
In Richter, the Second Circuit
held that it was improper for the prosecutor to ask the defendant on cross-examination
to testify whether the police officers who previously testified were lying.
Even though the questioning permitted the defendant to brand the agents
"testimony as either a lie or a mistake," and despite the absence of objection,
the Second Circuit found the impropriety to constitute reversible error.
The court found prejudice in the following facts: (1) the prosecutor called
a second FBI agent in rebuttal to corroborate testimony which the defendant
had branded as a lie; (2) the prosecutor made misstatements in his summation
which "emphasiz[ed] the improper nature of the questions he had forced
[the defendant] to answer"; (3) the prosecutor misled the jury by suggesting
that guilt hinged on the truthfulness of the FBI agents; (4) prosecutors
generally have been cautioned by that Circuit "to avoid" arguing "that,
if the defendant is innocent, government agents must be lying." 826 F.2d
at 208-09.
In United States v. Gaind, 31
F.3d 73 (1994), the Second Circuit indicated it did "not regard Richter
as controlling the decision of this case." Id. at 77. The court
distinguished Richter based on the "significant difference" between
asking the defendant whether the witness was lying or whether the witness
was simply mistaken, a distinction recognized in Richter, and the
fact that the witnesses whose testimony were in issue, were not law enforcement
agents.
It is quite clear that "the Second
Circuit has been very reluctant to expand the scope of the Richter
decision beyond its narrow and specific facts." United States v. Williamson,
53 F.3d 1500, 1523 (10th Cir. 1995). In Williamson, the
court noted that the prosecutor did not "call a rebuttal witness to emphasize
the cross-examination of the defendant." In the end, the Tenth Circuit
did not have to rule on Richter. In essence, Richter was
the Second Circuits continuing to show its frustration with possible sanctions
against prosecutors. See The Second Circuit Reacts to Prosecutorial
Misconduct, 49 Brooklyn L. Rev. 1245 (1983).
In Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974), the Supreme Court said that, to justify reversal,
it is not enough that the prosecutors remarks or conduct were improper;
the relevant question is whether the prosecutors comments "so infected
the trial with unfairness as to make the resulting conviction a denial
of due process." The Court has emphasized in numerous cases that it would
not readily overturn a conviction based on a prosecutors comments alone.
See, e.g., United States v. Young, 470 U.S. 1, 11-12
(1985); United States v. Hasting, 461 U.S. 499, 505-07 (1983)(Court
should not reverse a conviction when the Governments case is overwhelming).
Based on the judges instructions, any misstatement by the prosecutor would
have little impact on the jury. United States v. Laboy-Delgado,
84 F.3d 22, 30 (1st Cir. 1996).
While prosecutors should avoid making
unfair and improper comments, they can recognize what is readily apparent
to the jurors. United States v. Warren, 13 MJ 278 (CMA 1982).

ISSUE II - Facts
Trial counsel opened her sentencing
argument by stating that "honor" and "trust" are Marine values and by contrasting
appellant as a "thief" and a "liar." No objection was lodged that the argument
improperly invited the members to punish appellant for perjury and no limiting
instructions were requested.
Notwithstanding the absence of a request,
the military judge gave the following instruction during his sentencing
instructions:



No person, including the accused,
has a right to seek to alter or affect the outcome of a court-martial by
false testimony. Youre instructed that you may consider this issue only
within certain constraints.
First, this factor should play no role
whatsoever in your determination of an appropriate sentence unless you
conclude that the accused did lie under oath to the court.
Second, such lies must have been in
your view willful and material before they can be considered in your deliberations.
Finally, you may consider this factor
insofar as you conclude that it, along with all other circumstances in
the case, bears upon the likelihood that the accused can be rehabilitated.
You may not mete out additional punishment
for the false testimony itself.



There was no objection to this instruction
as given. Thus, in the absence of plain error, any objection to improper
argument was waived. RCM 1001(g). In any event I find no error in trial
counsels sentencing argument in this case, especially in light of the
military judges limiting instructions following argument. If, as the majority
seems to find, there was any impropriety in trial counsels sentencing
argument, it certainly does not rise to the level of plain error. See
United States v. Powell, 49 MJ 460 (1998).
FOOTNOTE:
1 380 U.S.
609, 612 (1965).


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