                          UNITED STATES, Appellee


                                        v.


                     Sean M. BIGELOW, Senior Airman
                        U.S. Air Force, Appellant

                                  No. 01-0713

                            Crim. App. No. 33797


       United States Court of Appeals for the Armed Forces


                       Argued February 26, 2002

                       Decided July 15, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.


                                    Counsel

For Appellant: Captain Patrick J. Dolan (argued); Lieutenant
Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
Murphy (on brief).

For Appellee: Major Jennifer R. Rider (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judge:     Mary M. Boone



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bigelow 01-0713/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     On November 23 and December 20-23, 1998, Senior Airman

(E-4) Sean M. Bigelow was tried by a general court-martial

composed of officer and enlisted members at Incirlik Air Base,

Turkey.    Contrary to his plea, he was found guilty of wrongfully

distributing LSD while receiving special pay, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10 USC

§ 912a.    On August 24, 1999, the convening authority approved

the adjudged sentence of a bad-conduct discharge, one year’s

confinement, total forfeitures, and reduction to Airman Basic

(E-1).    The Air Force Court of Criminal Appeals affirmed the

findings and the sentence.    55 MJ 531 (2001).

     We granted review of the following issues:

            I. WHETHER THE MILITARY JUDGE ERRED BY GIVING A
            NONSTANDARD ACCOMPLICE INSTRUCTION CONTRARY TO
            THIS HONORABLE COURT’S DECISION IN UNITED STATES
            V. GILLETTE, 35 MJ 468, 470 (CMA 1992).

            II. WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED BY CONCLUDING, CONTRARY TO UNITED
            STATES V. GILLETTE, 35 MJ 468, 470 (CMA 1992),
            THAT MILITARY JUDGES ARE NOT REQUIRED TO GIVE THE
            STANDARD ACCOMPLICE INSTRUCTION WHEN THE ISSUE IS
            RAISED BY THE EVIDENCE.

            III. WHETHER THE NEARLY NINE MONTHS BETWEEN THE
            CONCLUSION OF TRIAL AND THE CONVENING AUTHORITY’S
            ACTION AMOUNTED TO UNREASONABLE POST-TRIAL DELAY.

We hold that the military judge did not abuse her discretion by

failing to give the standard instruction in the Military Judges’

Benchbook, Dept. of the Army Pamphlet 27-9 (Sept. 30,


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United States v. Bigelow 01-0713/AF


1996)(“Benchbook”), when she gave an accomplice instruction that

satisfied the requirements of Gillette.          We also hold that the

delay prior to the convening authority’s action was reasonable.

                         FACTS - ISSUES I and II

    Since three witnesses who admitted using and possessing LSD

testified they were given LSD at a party by appellant, the

defense counsel at a session outside the presence of the members

asked for the standard Benchbook accomplice instruction.1             The


1
  The “standard” instruction referred to in the granted issue, as set forth
in the Benchbook, provides:

      You are advised that a witness is an accomplice if he/she was
      criminally involved in an offense with which the accused is charged.
      The purpose of this advice is to call to your attention a factor
      specifically affecting the witness’ believability, that is, a motive to
      falsify (his)(her) testimony in whole or in part, because of an obvious
      self-interest under the circumstances.

      (For example, an accomplice may be motivated to falsify testimony in
      whole or in part because of his/her own self-interest in receiving
      (immunity from prosecution) (leniency in a forthcoming prosecution)
      (______).)

      The testimony of an accomplice, even though it may be ((apparently)
      (corroborated) and) apparently credible is of questionable integrity
      and should be considered by you with great caution.

      In deciding the believability of (state the name of the witness), you
      should consider all the relevant evidence (including but not limited to
      (here the military judge may specify significant evidentiary factors
      bearing on the issue and indicate the respective contentions of counsel
      for both sides)).

      Whether (state the name of the witness), who testified as a witness in
      this case, was an accomplice is a question for you to decide. If
      (state the name of the witness) shared the criminal intent or purpose
      of the accused, if any, or aided, encouraged, or in any other way
      criminally associated or involved himself/herself with the offense with
      which the accused is charged, he/she would be an accomplice whose
      testimony must be considered with great caution.

      (Additionally, the accused cannot be convicted on the uncorroborated
      testimony of a purported accomplice if that testimony is self-
      contradictory, uncertain, or improbable.)


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United States v. Bigelow 01-0713/AF


defense objected to the judge’s proposed accomplice instruction2

and urged her to give the standard Benchbook instruction.             They



      (In deciding whether the testimony of (state the name of the witness)
      is self-contradictory, uncertain, or improbable, you must consider it
      in the light of all the instructions concerning the factors bearing on
      a witness’ credibility.)

      In deciding whether or not the testimony of (state the name of the
      witness) has been corroborated, you must examine all the evidence in
      this case and determine if there is independent evidence which tends to
      support the testimony of this witness. If there is such independent
      evidence, then the testimony of this witness is corroborated; if not,
      then there is no corroboration.)

      (You are instructed as a matter of law that the testimony of (state the
      name of the witness) is uncorroborated.)

Benchbook, at para. 7-10.

2
  The military judge proposed and subsequently gave the following
accomplice instruction:

      You are advised that a witness is an accomplice if he was
      criminally involved in an offense with which the accused is
      charged. The purpose of this advice is to call to your attention a
      factor bearing upon the witness’ believability. An accomplice may
      have a motive to falsify his testimony in whole or in part, because
      of his self-interest in the matter, that is, a motive to falsify
      his testimony in whole or in part, because of an obvious self-
      interest.

      For example, an accomplice may be motivated to falsify testimony in
      whole or in part because of his own self-interest in receiving
      immunity from prosecution or some sort of clemency in the
      disposition of his case.

      Whether or not Airman Basic Beene, [Airman First Class] Herpin, or
      Senior Airman Bradley[,] who each testified as a witness, was an
      accomplice is a question for you to decide. If Airman Basic Beene,
      [Airman First Class] Herpin, or Senior Airman Bradley shared the
      criminal intent or purpose of the accused, if any, or aided,
      encouraged, or in any other way criminally associated or criminally
      involved himself in the offense with which the accused is charged, then
      he would be an accomplice.

      As I indicated previously, it is your function to determine the
      credibility of all the witnesses, and the weight, if any, you will
      accord the testimony of each witness.

      Although you should consider the testimony of an accomplice with
      caution, you may convict the accused based solely upon the testimony of


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United States v. Bigelow 01-0713/AF


argued that the military judge’s proposed instruction weakened

the standard instruction.      The military judge reviewed the

standard instruction in the Gillette case and concluded that her

instruction on accomplice testimony would be clearer for the

court members.    She also gave the following instruction on

credibility of witnesses:

           You have the duty to determine the believability of
           the witnesses. In performing this duty[,] you must
           consider each witness’ intelligence, ability to
           observe and accurately remember, sincerity and conduct
           in court, prejudices, and character for truthfulness.
           Consider also the extent to which each witness is
           either supported or contradicted by other evidence;
           the relationship each witness may have with either
           side; and how each witness might be affected by the
           verdict. In weighing a discrepancy by a witness or
           between witnesses, you should consider whether it
           resulted from an innocent mistake or a deliberate lie.
           Taking all these matters into account, you should then
           consider the probability of each witness’ testimony
           and the inclination of the witness to tell the truth.
           The believability of each witness’ testimony should be
           your guide in evaluating testimony and not the number
           of witnesses called.

     Additionally, the judge instructed the members that all

three accomplices testified under grants of immunity and that

any prior inconsistent and consistent statements of witnesses

could be considered as to their credibility.          She omitted the

following admonishment from the standard instruction:            “The

testimony of an accomplice, even though it may be apparently

corroborated and apparently credible, is of questionable


     an accomplice, as long as that testimony wasn’t self contradictory,
     uncertain, or improbable.


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United States v. Bigelow 01-0713/AF


integrity and should be considered by you with great caution.”

The military judge’s instruction admonished the members once

that they must consider the testimony of an accomplice with

“caution,” whereas the standard instruction admonishes the

members twice to consider accomplice testimony with “great

caution.”    The military judge’s instruction also omitted the

portion of the standard instruction that covers how to determine

if accomplice testimony is corroborated.

                    DISCUSSION - ISSUES I and II

      Article 51(c), UCMJ, 10 USC § 851(c), requires specific

instructions to be given by the judge.    Article 36, UCMJ, 10 USC

§ 836, grants the President the authority to prescribe

“[p]retrial, trial, and post-trial procedures, including modes

of proof” for courts-martial.    “[S]o far as ... practicable,”

these rules should “apply the principles of law and the rules of

evidence generally recognized in the trial of criminal cases in

the United States districts courts, but which may not be

contrary to or inconsistent with” the UCMJ.

     While the prior Manuals for Courts-Martial contained a

provision concerning accomplice testimony, the present Manual

does not.    Paragraph 153a, Manual for Courts-Martial, United

States, 1969 (Rev. ed.), provided:

            Also, a conviction cannot be based upon
            uncorroborated testimony given by an alleged
            victim in a trial for a sexual offense or upon


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United States v. Bigelow 01-0713/AF


            uncorroborated testimony given by an accomplice
            in a trial for any offense, if in either case the
            testimony is self-contradictory, uncertain, or
            improbable.

A similar provision also appeared in paragraph 153a, Manual for

Courts-Martial, United States, 1951.         However, by 1984, the

President had deleted this from the binding portion of the

Manual and placed it in a non-binding Discussion section.              The

Discussion to RCM 918(c), Manual for Courts-Martial, United

States (2000 ed.),3 provides:

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

The subject of accomplice testimony is not addressed expressly

in the text of the Manual for Courts-Martial, nor is it

expressly addressed in the text of the Federal Rules of Criminal

Procedure.

      While finding “the better practice [is] for courts to

caution juries against too much reliance upon the testimony of

accomplices,” the Supreme Court recognized “there is no absolute

rule of law preventing convictions on the testimony of

accomplices,” even though there is no cautionary instruction,

and did not reverse the trial judge for failure to give such a

3
  This version is identical to the one in effect at the time of appellant’s
court-martial.


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United States v. Bigelow 01-0713/AF


cautionary instruction.   Caminetti v. United States, 242 U.S.

470, 495 (1917).

    Some federal judges, including Chief Judge Bazelon in a

separate opinion, have advocated a mandatory accomplice

instruction and voiced concern that absent such an instruction,

an innocent individual might be convicted.    United States v.

Kinnard, 465 F.2d 566, 573 (D.C. Cir. 1972).    Additionally,

Judge Learned Hand, in a unanimous opinion, recognized that “in

a close case,” the failure to give such an instruction may “turn

the scale.”    United States v. Becker, 62 F.2d 1007, 1009 (2d

Cir. 1933).    Seldom, however, has there been a reversal for the

failure to provide such an instruction.    Consistent with the

Supreme Court’s opinion in Caminetti, federal courts generally

have affirmed convictions despite the absence of such an

instruction.    See, e.g., United States v. Shriver, 838 F.2d 980,

983-84 (8th Cir. 1988); United States v. McGinnis, 783 F.2d 755

(8th Cir. 1986); United States v. Gonzalez, 491 F.2d 1202 (5th

Cir. 1974).

     Gillette was the first time we examined instructions on

accomplice testimony since the Manual provisions on the subject

were moved to a non-binding Discussion section.    Following the

“better practice” in other federal courts, this Court stated:

          [W]henever the evidence raises a reasonable
          inference that a witness may have been an
          accomplice or claims to have been an accomplice


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United States v. Bigelow 01-0713/AF


          of the accused, and upon request of either the
          Government or defense, the military judge shall
          give the members a cautionary instruction
          regarding accomplice testimony. First, the
          members shall be instructed how to determine
          whether a witness is an accomplice. Second, they
          should be given the standard instruction
          regarding the suspect credibility of accomplice
          testimony.

35 MJ at 470.

     Upon reflection, this language may have too broadly

suggested a mandatory requirement for the standard Benchbook

instruction where none existed.    The essential holding of

Gillette is that the critical principles of the standard

accomplice instruction shall be given, not necessarily the

standard instruction itself, word for word.    Indeed, the

standard instruction may in some cases be an overstatement or an

over-simplification.    Appellant has not cited any instructions

from civilian criminal law cases that employ language similar to

the standard Benchbook instruction.

     We hold that the military judge did not err in failing to

give the standard accomplice instruction.    Her instruction made

it clear to the members that accomplice testimony may be

motivated by self-interest, including receiving a grant of

immunity or clemency.    Additionally, she gave a credibility

instruction and an instruction as to one of the witnesses

regarding bad character for truthfulness.




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United States v. Bigelow 01-0713/AF


                        FACTS - ISSUE III

     The pertinent facts are uncontroverted and were assembled

by the Court of Criminal Appeals as follows:

          On 14 December 1998, a civilian court reporter
          (CR) assigned to the legal office at RAF
          Alconbury, England, completed the record of the
          initial trial session, held pursuant to Article
          39(a), UCMJ, 10 USC § 839(a), on 23 November
          1998. A paralegal from the office of the staff
          judge advocate (SJA) to the convening authority
          (CA), located at Aviano AB, Italy, was assigned
          to perform CR duties for the remainder and bulk
          of the trial. The appellant’s trial ended on 23
          December 1998. The paralegal CR returned to
          Aviano AB after the trial, finished transcribing
          the record by the end of February 1999, and
          mailed the transcribed portion of the record to
          the assistant trial counsel (ATC) at Incirlik AB
          on 1 March 1999. The CR received the record back
          from the ATC on 12 March 1999. The CR
          electronically mailed (e-mailed) a copy of the
          transcribed portion of the record to the military
          judge (MJ) on 15 March 1999. This copy was
          likely received by the MJ at her home station,
          Ramstein AB, Germany. On 18 March 1999, after
          receiving all the documents to be included with
          the record, the CR assembled and copied the
          record and delivered it personally to the MJ, who
          was then at Aviano AB. The MJ returned to
          Ramstein AB with the record and reviewed it
          there. The MJ then personally delivered the
          record to the ATC at Incirlik AB, on 6 April
          1999, for correction. On 16 April 1999, the ATC
          certified he examined the record pursuant to Rule
          for Courts-Martial (RCM) 1103(i)(1)(A).
          (Apparently, the trial defense counsel was not
          given an opportunity to examine the record
          pursuant to RCM 1103(i)(1)(B).) On 21 April
          1999, the record was transported to the CR at
          Aviano AB for changes consistent with the ATC’s
          examination. The CR made the changes and mailed
          the record to the MJ on 28 April 1999. The
          record was received by the MJ shortly after 10
          May 1999. The MJ returned the record for


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United States v. Bigelow 01-0713/AF


          additional corrections on 30 June 1999. Those
          corrections were made and the MJ authenticated
          the record on 8 July 1999. The record is 593
          pages long. The SJA completed his recommendation
          (SJAR) on 13 July 1999. The appellant
          acknowledged receipt of a copy of the SJAR on 19
          July 1999 and his trial defense counsel did the
          same on 3 August 1999. The defense counsel
          response to the SJAR is dated 11 August 1999 and
          a request for clemency is dated 12 August 1999.
          It was in these two documents that the defense
          first raised the issue of unreasonable post-trial
          delay. The Addendum to the SJAR is dated 20
          August 1999. The CA action is dated 24 August
          1999. The time from the end of trial to CA
          action is 244 days.

55 MJ at 532-33 (emphasis added)(footnotes omitted).

                     DISCUSSION - ISSUE III

     First, appellant contends that the “nine-month post-trial

delay in this case was never satisfactorily explained, even

after [he] complained about it.”     Final Brief at 13.   He argues

that it should not have taken the convening authority that long

to take action in his case.   Moreover, he argues, this

“inordinate and unexplained” delay substantially prejudiced him

because he “was denied the opportunity for parole -- parole

which probably would have been granted for a non-violent

offender with no prior criminal record.”     Id.   (According to

appellant, “a prisoner cannot leave on parole until the

convening authority takes final action on his or her case.”)       In

fact, the delay in this case has been explained.




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United States v. Bigelow 01-0713/AF


      The Court of Criminal Appeals concluded that “the 244 days

taken to prepare the record of trial and to take the necessary

steps leading up to the CA action [are] neither unexplained nor

inordinate.”   55 MJ at 533.   The court felt this way because

           [t]he trial participants were assigned to three
           different bases in three different countries in
           Europe. The record was lengthy – four volumes,
           totaling 593 pages, and, apparently from the
           number of times the MJ returned the record,
           contained numerous errors. Records of trial
           must report proceedings accurately. RCM
           1103(i)(1)(A). In this case, the MJ properly
           demanded an accurate record before
           authentication. The goal of achieving an
           accurate record sometimes requires additional
           time from what we would aspire to under optimum
           conditions. This is particularly true in our
           overseas theaters, where distances and modes of
           transportation complicate the effort to achieve
           as speedy post-trial processing of cases as
           possible.

Id.
      The Court of Criminal Appeals then took its analysis a step

further and found that, even if the 244-day-period constituted

unexplained and inordinate delay, appellant still failed to show

specific prejudice.   First, the Court of Criminal Appeals

explained:

           [H]e alleges he was prevented from applying for
           parole under Air Force Instruction (AFI) 31-205,
           Corrections Program (21 Jun 1999). We find
           nothing in this instruction to support the
           appellant’s contention. AFI 31-205, in the form
           that existed during the post-trial processing of
           the appellant’s case, and as it currently
           provides, does not prohibit a prisoner (other than
           one sentenced to death and, now also, one



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United States v. Bigelow 01-0713/AF


          sentenced to life without the possibility of
          parole) from applying for parole at any time.
          See AFI 51-205, The Air Force Corrections System,
          ¶ 10.12 (9 Apr 2001). In arriving at this
          conclusion, we have considered an affidavit from
          Mr. James D. Johnston, Executive Secretary, Air
          Force Clemency and Parole Board (AFCPB), Secretary
          of the Air Force Personnel Council, which makes it
          clear that nothing prohibits a prisoner from
          applying for parole prior to CA action and nothing
          prohibits the AFCPB from reviewing a case prior to
          such action. Moreover, even if the appellant had
          applied for parole, divining the outcome of such
          application is speculation, and therefore,
          provides no basis for finding specific prejudice.

Id. at 533-34 (emphasis added)(footnote omitted).

     We agree with the Court of Criminal Appeals that the 244-

day delay was “neither unexplained nor inordinate,” given the

unusual circumstances in this case.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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