

   
   
   
   U.S. v. Roth



UNITED STATES, Appellee
v.
Charles F. ROTH, Specialist
U. S. Army, Appellant
 
No. 98-0270
Crim. App. No. 9600441
 
United States Court of Appeals for the Armed
Forces
Argued December 2, 1998
Decided September 30, 1999
COX, C.J., delivered the opinion of the
Court, in which SULLIVAN and EFFRON, JJ., joined. SULLIVAN, J., filed a
concurring opinion. GIERKE, J., filed a dissenting opinion, in which CRAWFORD,
J., joined.

Counsel
For Appellant: Captain Donald P. Chisholm
(argued); Colonel John T. Phelps II, Lieutenant Colonel Adele
H. Odegard, and Captain Paul Fiorino (on brief); Lieutenant
Colonel Michael L. Walters and Major Holly S.G. Coffey.
For Appellee: Major Patricia A. Ham
(argued); Colonel Russell S. Estey (on brief); Lieutenant Colonel
Eugene R. Milhizer and Captain Chris A. Wendelbo.
Military Judges: Patrick K. Hargus and Debra
L. Boudreau
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Chief Judge COX delivered the opinion of the
Court.
In this case, we are called upon to decide
if the "military judge abused her discretion by refusing to allow appellant
to offer a sentencing witness in rebuttal" to the Government's evidence
in aggravation.1/
We conclude that she did, and we reverse.
Appellant and some accomplices broke into his
unit supply room located in the headquarters building at Fort Lewis, Washington.
They stole 11 pairs of night vision goggles and some computer equipment.
When the theft was discovered, the unit went into lockdown for a month.
A high priority investigation took place targeting every member of the
unit, but it was unsuccessful. About 5 weeks after the theft, the investigators
got a tip that night vision goggles, which had come from the Army, were
in circulation in California. The investigators tied the goggles to appellant.
Appellant had given the night vision goggles
and computer equipment to some childhood friends to sell for him. Ultimately,
all of the stolen items were recovered.
At a general court-martial composed of officer
members, appellant pleaded guilty to wrongful disposition of military property
(2 specifications), in violation of Article 108, UCMJ, 10 USC § 908.
Contrary to his pleas, he was convicted of conspiracy to sell, larceny
of, and attempted sale of military property, in violation of Articles 81,
121, and 80, UCMJ, 10 USC §§ 881, 921, and 880, respectively.
He was sentenced to confinement for 16 years, total forfeitures, reduction
to Private E-1, and a dishonorable discharge. The convening authority approved
the sentence as adjudged. The Court of Criminal Appeals affirmed the findings
and sentence on October 20, 1997.

The Military Judges Ruling
During the Government's case on sentencing,
Special Agent Barnes, an Army Criminal Investigation Command (CID) agent,
testified without defense objection that the theft of night vision goggles
was a very serious offense because the goggles might "fall into the wrong
hands." He went on to explain that the "wrong hands" included drug traffickers
and gangs. Again, there was no objection. These were the only two comments
by the government witness as to gangs.
Not content to leave this theme alone, defense
counsel, on cross-examination, sought to explore the question of whether
Special Agent Barnes was suggesting by his testimony that appellant was
a gang member. The following ensued:



Q: Now, you've thrown around the word "gang"
a lot, and I think Major Martin's brought it out that you belong to about
every -- you've been -- you have a lot of experience in investigating gang
activity, isn't that correct?
A: Yes, sir.
Q: Isn't it true that your investigation revealed
that Specialist Roth was not a member of any kind of gang, was he?
A: No, sir, it did reveal that.

* * *
Q: Agent Barnes, Specialist Roth was not a
member of a gang involved in criminal activity that you were able to discern,
isn't that true?
A: I did discern that.
Q: That this was a gang involved in criminal
activity?
A: By their self-admission.
Q: Agent Barnes, if Mr. Rosario, who is in
charge of the Leahy Housing Area and has been there for 5 years, were to
come up here and testify that there is no gang activity at Leahy, from
his 5 years of observation and from his law enforcement background, could
you be mistaken?
A: No, the Leahy Way housing authorities do
not believe there is a "Leahy Way Street Posse" and they do not believe
that there is a "Village Crew." That is true, the Leahy Way person would
tell you that there is no gang.



Following defense counsel's cross-examination,
trial counsel elicited more information from Special Agent Barnes, including
the fact that appellant was a member of a gang called the "West Coast Criminals,"
and he also testified that appellant attempted to sell some of the goggles
to members of "The Village Crew." There was no defense objection to this
testimony, and trial counsel used it in his closing argument.
When it became appellant's turn to present
his sentencing case, defense counsel called Mr. Rosario to testify. Mr.
Rosario was the manager of the Leahy Way housing area. He had been brought
to Fort Lewis from Livermore, California, as a defense witness. His expected
testimony was to contradict the testimony of Special Agent Barnes regarding
gang activity at the Leahy Way housing area.
Trial counsel entered an immediate objection
to the witness, claiming "he's been seated in the courtroom this entire
time," referencing the testimony of Special Agent Barnes. The following
exchange then took place between the military judge and counsel in an out-of-court
session:



MJ: Captain Bell, explain to me why you're
calling a witness out of the spectator section who hasn't been sequestered,
who is not a family member?
DC: I'd be glad to, Your Honor. Prior to this
court-martial beginning, I submitted a witness request list to Major Martin.
On that list I put Mr. Rosario and he asked, "Why would you be calling
this individual?" And I said, "Because I'm afraid that the Government is
going to present some evidence about gang activity, which was clearly not
borne out by the investigation, and --
MJ: Explain to me why you have a witness who
has not been sequestered?
DC: Because I was mislead by the Government,
Your Honor. I was told affirmatively by Major Martin that he would present
no evidence whatsoever on gang activity. I relied on his assertion and
I did not think Mr.- I had no intention whatsoever of calling Mr. Rosario
until Major Martin started hammering this so called "Leahy Gang," when
I was informed that he would not do that.
MJ: Captain Bell, you brought this up on cross-examination.
You set this up. You are not going to call this witness. That is my sanction.
DC: On the record, I object, I was mislead
by the Government --
MJ: The record is clear as to who raised this
issue. You will not call your witness.
DC: Your Honor, may I ask how I raised this
issue when it was brought out on direct--
MJ: You did it on cross-examination. You're
the one that initially broached the subject of gang activity and Specialist
Roth. It was not raised by the Government.
DC: Your Honor, the Government went into great
detail about Special Agent Barnes' gang knowledge. They went on direct
examination talking about Special -- Special Agent Barnes' gang education.
MJ: Captain Bell, if you will -- if you review
the testimony afterwards, you will see that the Government kept this in
general terms and in no way related this to Specialist Roth or Livermore,
California. They said that the reason for the investigation was so that
these night vision goggles would not fall into the wrong hands. There was
absolutely no tie-in with Specialist Roth. You brought this up yourself
initially on cross-examination. At that time, you should have stopped,
you should have had your witness leave the courtroom. You had that witness
sitting through his entire testimony. The sanction is:  You will not
call this witness.



The Law
Mil. R. Evid. 615, Manual for Courts-Martial,
United States (1995 edition), provides the following on the exclusion of
witnesses:

At the request of the prosecution or defense
the military judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and the military judge may make the order
sua sponte.

The rule is silent as to sanctions if a party
or a witness violates the rule. However, a noted threatise on the subject
indicates the following regarding sanctions for violations of the rule:

However, no effective remedies for treating
viola-tions of a sequestration order have been developed, particularly
where counsel cannot articulate specific harm. . . .
Other remedies are available, though. The bench
should permit counsel to bring out and comment on the sequestration violation.
Certainly, it relates to witness credibility. The court could add its own
comment on the violation. The bench could also prohibit a witness from
testifying or strike his testimony. This remedy has not been widely used
since it deprives a party and the fact-finder of testimony that might be
critical to a fair decision. Since courts have been reluctant to embrace
this remedy, it is not surprising that even harsher remedies--like dismissing
a case or striking a defense--have not been popular.

S. Saltzburg, L. Schinasi, D. Schlueter, Military
Rules of Evidence Manual, 825 (4th ed. 1997) (footnotes omitted).
Violations of the sequestration rule have been
treated generally in three ways. See Holder v. United States,
150 U.S. 91, 92 (1893); United States v. Lattimore, 902 F.2d 902
(11th Cir. 1990). First, the witness (or counsel) may be cited
for contempt or other appropriate admonitions or reprimands. See
RCM 801(b) and 809, Manual, supra; Art. 48, UCMJ, 10 USC §
848. Second, the court may allow opposing counsel to cross-examine the
witness as to the nature of the violation; and third, where counsel or
the witness violates the rule intentionally, the court may strike testimony
already given or disallow further testimony.
Our research reveals that the sanction of excluding
the witness has been used sparingly, particularly where a government witness
has not been sequestered. United States v. Gittens, 36 MJ 594 (AFCMR
1992); United States v. Lattimore, supra; United States
v. Womack, 654 F.2d 1034 (5th Cir. 1981). Indeed, most of
the cases concern the issue that the judge did not exclude the witness.
As with other evidentiary rulings, "[s]equestration
of witnesses and sanctions for violations of a sequestration order are
matters within the discretion of the court." United States v. Oropeza,
564 F.2d 316, 326 (9th Cir. 1977).
The standard of review for these rulings is
an "abuse of discretion." United States v. English, 92 F.3d 909,
913 (9th Cir. 1996); United States v. Avilia-Macias,
577 F.2d 1384, 1389 (9th Cir. 1978).

Conclusion
We conclude that the military judge abused
her discretion by excluding Mr. Rosario as a defense witness in the sentencing
portion of the trial. First, RCM 1001(c)(3) provides:

(3) Rules of evidence relaxed. The
military judge may, with respect to matters in extenuation or mitigation
or both, relax the rules of evidence[.]

While this rule goes on to discuss the admission
of documentary evidence, it is not limited to documentary evidence. If
read in conjunction with the rules on production of witnesses in sentencing
found in RCM 1001(e), it is clear that the intent of the sentencing rules
is to favor the admission of relevant evidence in the sentencing proceeding,
regardless of the form of the evidence. Mil. R. Evid. 615 is a rule of
evidence. The military judge had the discretion to "relax" the rule during
this proceeding.
The witness, Mr. Rosario, traveled a considerable
distance to be with appellant as a witness in his case. Neither Mr. Rosario,
appellant, nor the community in which he lived will understand the harsh
sanction imposed upon him by the military judge. They will always believe,
rightly or wrongly, that the unrebutted evidence that appellant was a member
of a gang, in part, caused the imposition of 16 years confinement upon
appellant. This was a significant piece of evidence that Mr. Rosario apparently
was prepared to dispute.
We agree with the Government's argument in
this case that defense counsel "invited" this situation. First,
appellant opened the door to the question of his membership in gangs and
his participation in gang activities. The agent had testified on direct
examination that he was a member of several gang investigative associations
and had published papers on gangs and the military. He also testified,
as mentioned earlier, that the investigation into the missing goggles was
given a high priority because of fear they would fall into the "wrong hands,"
including gangs. None of this, however, suggested any direct involvement
of appellant in gangs or gang activities.
Second, counsel did not ask Mr. Rosario to
leave the room during his examination of the agent. However, there is nothing
in the record to suggest that defense counsel's conduct was deliberate
or willful, or done with the design to coach his witness.
Third, the ultimate sanction of excluding the
witness should be used ordinarily to punish intentional or willful disobedience
of the military judge's sequestration orders. Lattimore, supra
at 904; United States v. Blasco, 702 F.2d 1315, 1327 (11th
Cir.), cert. denied, 464 U.S. 914 (1983). As with other rules
that may preclude a defendant from introducing important defense evidence,
neither the rule nor the enforcement of the rule can be "disproportionate
to the purposes they are designed to serve." citing Rock v. Arkansas,
483 U.S. 44, 56 (1987); Michigan v. Lucas, 500 U.S. 145,151 (1991).
Fourth, the Government would not have been
prejudiced if the witness had been allowed to testify. Special Agent Barnes
had already acknowledged that the people from the Leahy Housing Area would
testify that there were no gangs there, a fact that Special Agent Barnes
disputed. Thus, the witness was not offering surprise testimony. Furthermore,
there is no indication that the presence of the witness in the courtroom
would have caused him to tailor his testimony to the evidence.
Last, the issue of whether or not the night
vision goggles were stolen by, and intended for the use of, street gangs
became an important issue in sentencing, albeit, because of defense counsel's
cross-examination of Special Agent Barnes. It was fundamentally unfair
to leave this evidence totally unrebutted.
Accordingly, under these circumstances, we
hold that the military judge abused her discretion in excluding the testimony
of the defense witness, Mr. Rosario. See also Michigan
v. Lucas, supra.
The decision of the United States Army Court
of Criminal Appeals is reversed as to sentence. The sentence is set aside.
The record of trial is returned to the Judge Advocate General of the Army.
A rehearing on sentence may be ordered.
FOOTNOTE:
1/ The granted issue is:

WHETHER THE MILITARY JUDGE
ABUSED HER DISCRETION BY REFUSING TO ALLOW APPELLANT TO OFFER A SENTENCING
WITNESS IN REBUTTAL TO THE GOVERNMENT'S INFERENCE THAT APPELLANT STOLE
NIGHT VISION GOGGLES FOR USE BY A STREET GANG.
 
 

SULLIVAN, Judge (concurring):
I agree that appellants sentence must be reversed
and remanded. However, I would hold that the Government did initially approach
the gang connection on direct examination. I do not find Special Agent
Barnes description of his gang-related education innocuous; rather it
opened the door for speculation that appellants activities were gang related.
I would further find that the military judge
did abuse her discretion by imposing the "death penalty" of sequestration
sanctions without justification. The record shows only a general sequestration
order without specifically mentioning Rosario. Assuming the order was violated,
the extreme sanction bears no relationship to the violation. The Supreme
Court in Michigan v. Lucas, 500 U.S. 145 (1991), held that a judge
may not take the extreme measure of excluding a witness which disproportionately
punishes the party which violates a rule of evidence. Such actions are
unjustified restrictions on a criminal defendants rights to confront adverse
witnesses and present evidence. In appellants case, Special Agent Barnes
testified to appellants gang involvement to the fullest without any opportunity
of rebuttal by the defense. This presented a lethal blow to the defense
sentencing case and requires reversal of his sentence.
 
 
GIERKE, Judge, with whom CRAWFORD, Judge, joins
(dissenting):
In my view, the military judge did not abuse
her discretion by enforcing Mil. R. Evid. 615.
At the outset, I disagree with the majoritys
implication that the Supreme Courts decision in Michigan v. Lucas,
500 U.S. 145 (1991), supports its decision. In Lucas, the trial
court had excluded evidence of the victims past sexual conduct because
the defense had failed to give the notice required by the states "rape-shield"
statute. The Michigan Court of Appeals held that the notice-and-hearing
requirement in the states "rape-shield" statute was unconstitutional.
The Supreme Court overturned the Michigan courts decision. It explained:



The sole question presented for our review
is whether the legitimate interests served by a notice requirement can
ever justify precluding evidence of a prior sexual relationship between
a rape victim and a criminal defendant. The answer from the Michigan Court
of Appeals was no; it adopted a per se rule prohibiting preclusion of this
kind of evidence. This ruling cannot be squared with our cases.



500 U.S. at 151.
In its opinion, the Supreme Court recognized
the authority of a trial judge to exclude a witness as a sanction for violating
a notice requirement. It reviewed several cases where the exclusion of
a defense witness was upheld. Id. at 149-52. The Supreme Court "express[ed]
no opinion as to whether or not preclusion was justified in this case."
Id. at 153.
In my view, the military judges decision in
the case before us was justified, for the following reasons:
First, the primary issue on sentencing was
the sensitive nature of the night vision goggles and the danger of their
falling into the "wrong hands." See RCM 1001(b)(4) (permitting evidence
of "aggravating circumstances directly relating to or resulting from the
offenses"). Whether appellant was a member of a gang was a secondary, collateral
issue.
Second, the defense first raised the issue
of appellants connection with gangs during cross-examination of Special
Agent (SA) Barnes.
Third, the defense elicited testimony from
SA Barnes that the Leahy Housing Area manager did not believe that there
were gangs in the housing area. Thus, Mr. Rosarios testimony would have
merely repeated the point already acknowledged by SA Barnes: that Mr. Rosario
did not believe that there were gangs in the housing area.
Fourth, the defense improperly permitted Mr.
Rosario to remain in the courtroom while they questioned SA Barnes about
what Mr. Rosario would say.
Fifth, the
military judge was consistent and even-handed in excluding Mr. Rosario.
The military judge previously had sanctioned the prosecution by excluding
a prosecution witness who was not sequestered. Knowing that the military
judge had previously sanctioned the prosecution by excluding a prosecution
witness who was not sequestered, the defense nevertheless jeopardized its
ability to present the testimony of Mr. Rosario by not sequestering him.
Finally, if there was any error in
this case, it was harmless. As noted above, Mr. Rosario would have merely
repeated the point already made by SA Barnes regarding a collateral issue.
In my view, it was appellants abuse of trust and the sensitive nature
of the stolen property, not the oblique references to appellants supposed
gang membership, that caused the court-martial to sentence him to a punitive
discharge and a lengthy period of confinement.

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