                        UNITED STATES, Appellee

                                     v.

                  Douglas L. SAFERITE, Senior Airman
                       U.S. Air Force, Appellant

                               No. 03-0271

                          Crim. App. No. 34378


       United States Court of Appeals for the Armed Forces

                        Argued October 22, 2003

                         Decided March 3, 2004

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

                                  Counsel

For Appellant: Captain Jennifer K. Martwick (argued); Colonel
Beverly B. Knott, and Major Terry L. McElyea (on brief).

For Appellee: Major Shannon J. Kennedy (argued); Colonel
LeEllen Coacher (on brief); Lieutenant Colonel Robert V. Combs
and Lieutenant Colonel Lance B. Sigmon.

Military Judge:    Rodger A. Drew, Jr.


  This opinion is subject to editorial correction before final publication.
United States v. Saferite, No. 03-0271/AF


      Judge GIERKE delivered the opinion of the Court.

     A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of attempting to

sell military property (three specifications), selling military

property (eight specifications), and larceny of military

property (12 specifications), in violation of Articles 80, 108,

and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880,

908, and 921 (2000), respectively.          The adjudged and approved

sentence provides for a dishonorable discharge, confinement for

six years, a fine of $14,565.00 and to be further confined until

the fine is paid but not for more than one year, and a reduction

to the grade of E-1, airman basic.          The Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.   United States v. Saferite, ACM 34378 (A.F. Ct. Crim.

App. January 10, 2003).

     This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION
      EXHIBITS 141 AND 142 AS EVIDENCE IN SENTENCING TO SHOW THAT
      APPELLANT’S WIFE MAY HAVE BEEN AN ACCESSORY TO HIS ESCAPE
      FROM PRETRIAL CONFINEMENT.

For the reasons set out below, we find that the military judge

erred in admitting these two exhibits, but conclude that this

error was harmless and affirm.

                            Factual Background

     The facts underlying Appellant’s conviction were summarized

as follows by the Court of Criminal Appeals:


                                      2
United States v. Saferite, No. 03-0271/AF


                 In the summer of 1999, the appellant was assigned
            to the Network Control Center at Spangdahlem [Air
            Base, where appellant was] responsible for computer
            systems used for communications. He planned to
            separate from the Air Force in September 1999, and had
            a job awaiting him in Germany. He was also engaged to
            Isabelle Scholzen, a citizen of Luxembourg, who was
            expecting their child in December 1999.

                 From about July to September 1999, the appellant
            stole large quantities of expensive computer equipment
            and electronic components from his duty section, and
            sold them over the Internet through a popular auction
            site. On the night before he was scheduled to out-
            process from the Air Force, he stole processors from
            the eight computers handling the installation’s
            unclassified e-mail. He was careful to take only
            three of the four processors from each machine, so the
            system would continue to operate even though its
            capabilities were greatly reduced. Nonetheless,
            technicians soon discovered the missing processors,
            and the appellant was apprehended before his
            separation from active duty. A search of his rented
            car and his girlfriend’s home revealed more stolen
            government property, and ultimately led investigators
            to records of his sales of government property over
            the Internet. The total loss to the United States
            exceeded $100,000.00

                 The appellant was placed in pretrial confinement
            on 2 October 1999. Air Force authorities allowed him
            to marry Isabelle Scholzen while in confinement, and
            four days later she gave birth to their child.

Id. at 2.

     During Appellant’s trial, he escaped from pretrial

confinement.∗    He was convicted and sentenced in absentia.



∗
 Appellant was confined at the military facility in Mannheim,
Germany, but he was taken under guard to Spangdahlem Air Base to
consult with his counsel and participate in trial proceedings.
He was being held overnight in a billeting facility at
Spangdahlem Air Base when he escaped from his guards.


                                      3
United States v. Saferite, No. 03-0271/AF


     During the sentencing proceedings, defense counsel

presented a written unsworn statement from Appellant’s wife, Ms.

Scholzen.    In the statement, she gave her opinion of the

Appellant as a caring father and supportive spouse.    She

described in detail her relationship with Appellant including

how she met him, how he convinced her to keep their baby when

she unexpectedly became pregnant, and how and why they got

married even while Appellant was in pretrial confinement.      She

described Appellant’s support for her during a challenging

pregnancy and his happiness when their baby was born.

Repeatedly she commented on Appellant’s desire to be a good

husband and father and her need for and dependence on Appellant.

She professed her love for Appellant and described how much they

missed each other.     She ended her statement with a passionate

plea for compassion for Appellant.

     In rebuttal, trial counsel offered two items of documentary

evidence in an attempt to attack the credibility of Ms.

Scholzen.    Trial counsel asserted that these two documents were

evidence of bias by Ms. Scholzen because they “tend to establish

that circumstantially” Ms. Scholzen “was materially involved in

the escape of the accused from pretrial confinement on the 2d of

March 2000.”    Prosecution Exhibit 141 was a redacted sworn

statement showing that Appellant, while in pretrial confinement,

had talked to Ms. Scholzen on the telephone on the evening of



                                      4
United States v. Saferite, No. 03-0271/AF


February 29, 2000.     Prosecution Exhibit 142 was another sworn

statement showing that approximately 40 minutes after Appellant

escaped from custody, Ms. Scholzen was stopped by military

authorities in the middle of the night as she was driving out of

Spangdahlem Air Base at a high rate of speed. Appellant was not

in his wife’s vehicle and his location was not established.

Prosecution Exhibit 142 further revealed that Ms. Scholzen told

the German police at the scene that she went to Spangdahlem to

talk to her husband but was unable to locate him.

     Trial defense counsel objected to both of these documents

and argued they were not relevant and were unduly prejudicial.

The military judge admitted Prosecution Exhibits 141 and 142

over defense objection, ruling that the evidence was relevant to

show bias, in that it tended to show that Ms. Scholzen was

willing “to engage in criminal activity in order to support her

husband.”    The military judge weighed the danger of unfair

prejudice against the probative value and concluded the evidence

was not unfairly prejudicial “because it’s not [Appellant] we’re

talking about here, it’s his wife.”         The military judge ruled

that the documents, with further redaction of extraneous

material, were admissible extrinsic evidence under Military Rule

of Evidence 608(c) [hereinafter M.R.E.].

     In his sentencing instructions, the military judge

cautioned the members that they must “bear in mind that the



                                      5
United States v. Saferite, No. 03-0271/AF


accused is to be sentenced only for the offenses of which he has

been found guilty.”      He further instructed the members that they

were permitted to consider Appellant’s absence from the court-

martial “in assessing his military record,” but he cautioned

them,

             [R]emember that if he is to be punished for that
             absence, it will be in a different forum, on a future
             date. The function of this court is to punish the
             accused only for the offenses of which he has been
             found guilty by this court.

        During arguments on the sentence, trial counsel attacked

the testimony of Ms. Scholzen.        First, he argued that “She’s not

entirely uninvolved with this entire situation.”       He asserted

that she was aware of Appellant’s making big money by auctioning

items on the Internet.      Second, he argued that the evidence

suggested that “there was some coordination, some communication,

some collusion there between the two of them about his escape

from confinement.”     Trial counsel assured the members that the

evidence was not presented to “beat up” Ms. Scholzen, but “as a

form of bias.”     He concluded this portion of his argument by

exhorting the members to consider Ms. Scholzen’s willingness to

help Appellant escape from confinement when they read her

statement.

        Addressing the present issue, the Court of Criminal Appeals

held that the military judge did not abuse his discretion in

admitting Prosecution Exhibits 141 and 142.       The court stated



                                      6
United States v. Saferite, No. 03-0271/AF


complete agreement with the reasoning of the military judge that

these documents tend to show bias of Appellant’s wife because of

her willingness to engage in criminal activity to support

Appellant.    Saferite, ACM 34378 at 3-4.

     Before this Court, Appellant asserts that Prosecution

Exhibits 141 and 142 were not proper rebuttal evidence because

they did not “explain, repel, counteract or disprove” anything

in Ms. Scholzen’s letter.       He asserts that the evidence did not

demonstrate any “bias, prejudice or any motive to misrepresent”

on the part of Ms. Scholzen, because the allegation of

involvement in her husband’s escape from confinement does not

make her feelings about her husband and her perception of his

qualities less true.      Appellant also argues that the evidence

was unduly prejudicial because it allowed the prosecution to

refer to uncharged misconduct in argument, i.e., that Appellant

conspired with his wife to escape and was the type of person who

would involve his wife in his criminal activities, without a

proper cautionary instruction from the military judge regarding

the limited purpose for which the evidence was received.

     The Government argues that the military judge did not abuse

his discretion by admitting the evidence.      It argues that a

declarant’s bias is always relevant, that trial counsel limited

his use of the evidence to focus on bias, and that the military

judge cautioned the members that they could punish Appellant



                                      7
United States v. Saferite, No. 03-0271/AF


only for the offenses of which he was found guilty.         The

Government argues that the evidence rebutted Ms. Scholzen’s

characterization of Appellant as a devoted “family man” by

showing that he was “willing to involve his wife in a criminal

enterprise” and “willing to ‘orphan’ his offspring by risking

both of their parents’ freedom.”          Finally, the Government argues

that even though the members were already aware that Appellant

was a deserter, they sentenced him to confinement for six years

instead of 16 years as recommended by the trial counsel,

indicating that they were not unduly inflamed by the evidence at

issue.

                                 Discussion

      “The Military Rules of Evidence are applicable to

sentencing . . . thus providing procedural safeguards to ensure

the reliability of evidence admitted during sentencing.”          United

States v. McDonald, 55 M.J. 173, 176 (C.A.A.F. 2001); Manual for

Courts-Martial, United States (2002 ed.), Analysis of the

Military Rules of Evidence A21-69.          The military judge may

exercise discretion to relax the evidentiary rules for the

defense to present sentencing evidence.         M.R.E. 1101(c); Rule

for Courts-Martial 1001(c)(3).        This relaxation of evidentiary

rules “‘goes more to the question of whether the evidence is

authentic and reliable’” and “otherwise inadmissible evidence

still is not admitted at sentencing.”         United States v. Boone,



                                      8
United States v. Saferite, No. 03-0271/AF


49 M.J. 187, 198 n.14 (C.A.A.F. 1998)(quoting David A.

Schlueter, Military Criminal Justice: Practice and Procedure §

16-4(B) at 721 (4th ed. 1996)).

      During sentencing, as at every other moment of trial

testimony, the credibility of a witness is an omnipresent issue.

Each witness’s credibility determines the authority of the

testimony.    Section VI of the Military Rules of Evidence is

entitled “Witnesses,” but easily could be viewed as “Credibility

of Witnesses” as the whole section focuses on technical

evidentiary rules to bolster or to attack the credibility of

testimony.

     M.R.E. 608 is a key evidentiary rule that covers several

methods to bolster or attack the credibility of a witness.

These methods include opinion and reputation evidence as to the

character of a witness for truthfulness and questions regarding

specific instances of conduct that may be relevant to

credibility.    Important to the present case is M.R.E. 608(c),

which states: “Evidence of bias.          Bias, prejudice, or any motive

to misrepresent may be shown to impeach the witness either by

examination of the witness or by evidence otherwise adduced.”

      Evidence of bias can be powerful impeachment.        Davis v.

Alaska, 415 U.S. 308 (1974).       The Supreme Court has observed

that “[p]roof of bias is almost always relevant.”         United States

v. Abel, 469 U.S. 45, 52 (1984).          Although extrinsic evidence of



                                      9
United States v. Saferite, No. 03-0271/AF


specific acts of misconduct may not be used to prove a witness’s

general character for truthfulness, it may be used to impeach a

witness by showing bias.       United States v. Hunter, 21 M.J. 240,

242 (C.M.A. 1986).

     Additionally, we are mindful that evidentiary rules are not

applied in a factual vacuum.       The context in which evidence is

offered is often determinative of its admissibility.       In the

present case, as the prosecution offered Prosecution Exhibits

141 and 142 to rebut Defense Exhibit C, the admissibility of

rebuttal evidence is at issue.        This Court has clearly stated

the legal function of rebuttal evidence:       "It is . . . to

explain, repel, counteract or disprove the evidence introduced

by the opposing party."      United States v. Banks, 36 M.J. 150,

166 (C.M.A. 1992)(quoting       United States v. Shaw, 9 C.M.A. 267,

271, 26 C.M.R. 47, 51 (1958)(Ferguson, J., dissenting)).         “The

scope of rebuttal is defined by evidence introduced by the other

party.”   Id. at 166.

     Rebuttal evidence, like all other evidence, may be excluded

pursuant to M.R.E. 403 if its probative value is substantially

outweighed by the danger of unfair prejudice.       United States v.

Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001).        M.R.E. 403 applies to

sentencing evidence.      United States v. Rust, 41 M.J. 472, 478

(C.A.A.F. 1995).




                                     10
United States v. Saferite, No. 03-0271/AF


      We review a military judge’s evidentiary rulings for abuse

of discretion.     United States v. Sullivan, 42 M.J. 360, 363

(C.A.A.F. 1995).     When the military judge conducts a proper

balancing test, we will not overturn the ruling to admit the

evidence unless there is a “clear abuse of discretion.”       United

States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998).

       We hold that the military judge clearly abused his

discretion.    While the evidence was logically relevant to show

Ms. Scholzen’s bias in favor of Appellant, its probative value

was substantially outweighed by the danger of unfair prejudice.

       The probative value was minimal.     The thrust of Ms.

Scholzen’s statement was to present her personal opinion that

Appellant was a good father and husband.     Her poignant plea

professed her love for Appellant, emotional need for his

support, and loneliness during his absence.     The content and

tone of Ms. Scholzen’s statement convincingly showed her bias as

the wife of Appellant.      It was clear that her statement

presented her view of Appellant through her eyes as his wife.

Her detailed explanation of her marriage to Appellant while he

was in pretrial confinement spoke volumes about her commitment

to him and clear bias for him.

       In this context, evidence of her possible complicity in

Appellant’s escape added little to establish her bias in her




                                     11
United States v. Saferite, No. 03-0271/AF


statement.    At best, it was merely cumulative on the issue of

her bias toward Appellant.

        On the other hand, the danger of unfair prejudice was

substantial.    Rather than show bias on the part of Ms. Scholzen,

the evidence tended merely to allege uncharged misconduct by

Appellant.    If the members believed the theory advanced by the

prosecution, then Appellant was guilty of conspiring with his

wife and involving her in the criminal conduct of his escape.

First, we view the factual evidence of this theory as tenuous at

best.    The circumstances of the authorities stopping Ms.

Scholzen off base early in the morning did not establish her

involvement in Appellant’s escape at his behest.     Second,

notwithstanding the factual deficiency to link Ms. Scholzen to

Appellant’s escape, trial counsel focused his argument on the

uncharged misconduct.      Trial counsel did ask the members to find

“a form of bias” from the willingness of Ms. Scholzen to help

Appellant escape.     But the focus of his argument was on the

uncharged misconduct of Appellant’s conspiring with his wife to

assist him in his escape as reflected in trial counsel’s

statement, “We suggest to you that there was some coordination,

some communication, some collusion there between the two of them

about his escape from confinement.”

        Although we identify this danger of unfair prejudice, we

further hold that the error was harmless under the particular



                                     12
United States v. Saferite, No. 03-0271/AF


facts of this case.      Evidence of Appellant’s escape was already

before the members.      Appellant was tried in absentia.   The

military judge carefully instructed the members to sentence

Appellant only for the offenses of which he was convicted.         He

cautioned the members that any punishment arising from

Appellant’s absence “will be in a different forum, on a future

date.”

     The record reflects that the members followed the military

judge’s instruction.      The maximum period of confinement was 230

years and the trial counsel asked the members to impose

confinement for 16 years.       However, the members imposed

confinement for only six years.        Thus, we can “say, with fair

assurance, . . . that the judgment was not substantially swayed

by the error.”     Kotteakos v. United States, 328 U.S. 750, 765

(1946)(quoted in Hursey, 55 M.J. at 36 (C.A.A.F. 2001)).          See

also United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000).

                                  Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                     13
