                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                  Shane T. SEIDER, Airman First Class
                       U.S. Air Force, Appellant

                               No. 04-0082

                          Crim. App. No. 35154


       United States Court of Appeals for the Armed Forces

                         Argued April 20, 2004

                         Decided June 21, 2004

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

                                  Counsel

For Appellant: Major Andrew S. Williams (argued); Major Terry
L. McElyea and Captain Jennifer K. Martwick (on brief).

For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief).

Military Judge:    S. A. Hatfield


  This opinion is subject to editorial correction before final publication.
United States v. Seider, No. 04-0082/AF

     Judge ERDMANN delivered the opinion of the Court.

     Appellant, Airman First Class Shane T. Seider, was tried by

a general court-martial consisting of members.      He was charged

with the wrongful use of cocaine on divers occasions and

wrongfully distributing cocaine in violation of Article 112a,

Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 912a

(2000).   Although Seider pleaded not guilty to both

specifications, he was found guilty of wrongfully distributing

cocaine as charged and of wrongfully using cocaine except the

words “on divers occasions.”

     Seider was sentenced to a bad-conduct discharge,

confinement for 15 months, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade.      The convening

authority approved the sentence and the Air Force Court of

Criminal Appeals affirmed the findings and sentence in an

unpublished opinion.   United States v. Seider, ACM 35154 (A.F.

Ct. Crim. App. August 11, 2003).       We granted review of the

following issue:

           WHETHER, IN LIGHT OF UNITED STATES V.
           WALTERS, 58 M.J. 391 (C.A.A.F. 2003), THE
           AIR FORCE COURT ERRED IN AFFIRMING
           APPELLANT’S CONVICTION FOR WRONGFULY USING
           COCAINE BECAUSE THERE WAS NO WAY TO KNOW
           WHICH USE OF COCAINE THE MEMBERS FOUND
           APPELLANT GUILTY OF.

We hold that the Air Force Court of Criminal Appeals erred.




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United States v. Seider, No. 04-0082/AF

                               FACTS

     Seider was arraigned and tried upon two specifications

alleging violations of Article 112a.   Specification 1 alleged

the wrongful use of cocaine “on divers occasions” as follows:

           In that Airman First Class Shane T. Seider,
           United States Air Force, 559th Flying
           Training Squadron, Randolph Air Force Base,
           Texas, did, at or near Universal City,
           Texas, on divers occasions between on or
           about 1 October 2000 and on or about 31
           December 2000, wrongfully use cocaine.

     Trial counsel asserted in his opening statement that the

Government would prove two cases.

     Government evidence presented in support of this offense

revealed two distinct instances during which Seider allegedly

used cocaine.   Airmen Basic Castonguay, Bennett, and Chavez each

testified that while playing cards and drinking at Seider’s

apartment, Seider provided cocaine and used the substance

himself.   Airman Basic Castonguay also testified that about a

month earlier he had been at Seider’s home watching football

when Seider provided and used cocaine.    This testimony about two

distinct events formed the only evidentiary basis for the

allegation of wrongful use of cocaine “on divers occasions.”

     As part of his sentencing instructions the military judge

advised the members:

           As to Specification 1 of the Charge, if you
           have doubt the accused wrongfully used
           cocaine on divers occasions, but you are
           satisfied beyond a reasonable doubt that the


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United States v. Seider, No. 04-0082/AF

          accused wrongfully used cocaine once, you
          may still reach a finding of guilty;
          however, you must change the specification
          by exception, i.e., deleting the words “on
          divers occasions.”

     This instruction was not accompanied by instructions about

substitutions to specify a single use on or about a given date

and the military judge did not provide any instruction on how to

make exceptions and substitutions on the findings worksheet.

During his argument on findings, trial counsel variously

referred to the evidence of use “on more than one occasion,” “on

divers occasions,” “on an additional occasion,” “during both

occasions,” “on a second occasion,” and “on two occasions.”    The

Government clearly relied upon evidence of the two separate

incidents to prove use “on divers occasions.”

     Prior to the announcement of the findings, the military

judge examined the findings worksheet, noted one minor

correction with respect to a finding on the Charge and

determined the worksheet to be “in proper form.”   The president

of the court announced that the members found Seider “of

Specification 1 of the Charge:   Guilty, except the words: ‘on

divers occasions.’   Of the excepted words, Not Guilty, of the

remaining words, Guilty.”   The members made no substitutions to

specify which of the two uses presented by the Government was

proven beyond a reasonable doubt.    The military judge did not




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United States v. Seider, No. 04-0082/AF

direct and the parties to the trial did not request any

clarification of the findings.

                            DISCUSSION

     The issue in this case focuses upon the uncertainty in this

particular verdict – a circumstance involving the conversion of

a “divers occasion” specification to a “one occasion”

specification through exceptions.     We addressed this same

uncertainty in United States v. Walters, 58 M.J. 391 (C.A.A.F.

2003), where we held that the military judge erred “in giving

incomplete instructions regarding the use of findings by

exceptions and substitutions and in failing to secure

clarification of the court-martial’s ambiguous findings prior to

announcement.”   Id. at 396-97.   We further held that this type

of ambiguous verdict could not be reviewed under Article 66(c),

UCMJ, 10 U.S.C. § 866(c) (2000), “because the findings of guilty

and not guilty do not disclose the conduct upon which each of

them was based.”   Walters, 58 M.J. at 397.

     While the Government conceded at oral argument that this

verdict presented a Walters problem at the trial level, they

argue that the uncertainty presented by the verdict was resolved

by the Court of Criminal Appeals.     The Government further argued

that this case is “substantially different” than Walters.

Unlike Walters which involved evidence of as many as six

instances of drug use, the Government urges that this case



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United States v. Seider, No. 04-0082/AF

involves evidence of only two discrete alleged instances and

that the record provides a clear, sufficient factual basis for

the Court of Criminal Appeals to review the finding and resolve

any ambiguity.   The Government’s argument finds support in the

Court of Criminal Appeals’ per curiam opinion:

                We reviewed the record of trial for the
           legal and factual sufficiency of the
           evidence. Article 66(c), UCMJ, 10 U.S.C. §
           866(c); United States v. Reed, 54 M.J. 37,
           41 (2000). Three witnesses testified that
           the appellant distributed and used cocaine
           during a card game at the appellant’s off-
           base apartment. One of the three witnesses
           provided vague testimony about one
           additional use of cocaine. Exercising our
           fact-finding power under Article 66(c),
           UCMJ, we are convinced beyond a reasonable
           doubt that the appellant used and
           distributed cocaine during a card game at
           the appellant’s off-base apartment. We are
           similarly convinced that this was the basis
           for the court members’ finding of guilt for
           this specification.

Seider, ACM 35154, slip op at 1-2.

     While recognizing that the military judge erred in failing

to give complete instructions and failing to secure

clarification of the court-martial’s ambiguous findings prior to

announcement, the Government overlooks a central holding in

Walters.   Because the findings of guilty and not guilty do not

disclose the conduct upon which each of them was based, the

Court of Criminal Appeals cannot conduct a factual sufficiency

review of Appellant’s conviction.    As we noted in Walters, the

Court of Criminal Appeals is prevented from even conducting its


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United States v. Seider, No. 04-0082/AF

factual sufficiency review by the fundamental rule that the

“Court of Criminal Appeals cannot find as fact any allegation in

a specification for which the factfinder below has found the

accused not guilty.”*   Walters, 58 M.J. at 395 (citing United

States v. Smith, 39 M.J. 448, 451 (C.M.A. 1994)).    In turn,

where we cannot determine whether the Court of Criminal Appeals

reviewed and affirmed an offense of which Seider was acquitted,

we cannot affirm that finding.

                             DECISION

     Accordingly, the decision of the Air Force Court of

Criminal Appeals as to Specification 1 of the Charge and the

sentence is reversed, but is affirmed in all other respects.

The finding of guilty of Specification 1 of the Charge and the

sentence are set aside and Specification 1 is dismissed.   The

record is returned to the Judge Advocate General of the Air

Force for remand to the Court of Criminal Appeals.   That Court

may either reassess the sentence based on the affirmed guilty

findings or order a rehearing on the sentence.




*
  The fact that this case involved only two incidents while
Walters involved six incidents does not impact upon the
inability of the Court of Criminal Appeals to conduct a factual
sufficiency review of the conviction. The defect is neither a
question of the legal or factual sufficiency of the evidence of
one alleged use versus the other, nor is it a question to be
resolved by weighing evidence and concluding that evidence of
one use is quantitatively or qualitatively inferior.

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United States v. Seider, No. 04-0082/AF


     CRAWFORD, Chief Judge (dissenting):

     I respectfully dissent from the lead opinion on several

grounds.   First, the majority unnecessarily creates a sweeping

rule on what should be an extremely fact-specific issue.    To

this end, the lead opinion fails to recognize the features of

this case which distinguish it from Walters, and therefore

render the Walters holding inapplicable.    United States v.

Walters, 58 M.J. 391 (C.A.A.F. 2003).    Finally, the majority

neglects to apply waiver in this case.

     On the first point, the allegation of committing an offense

on “divers occasions” exists not only under the facts of this

case and Walters, but also in the context of sexual abuse, e.g.,

United States v. Wellington, 58 M.J. 420 (C.A.A.F. 2003); carnal

knowledge, United States v. McCollum, 58 M.J. 323 (C.A.A.F.

2003); leaving a daughter unattended, United States v. Vaughan,

58 M.J. 29 (C.A.A.F. 2003); sexual harassment, United States v.

Brown, 55 M.J. 375 (C.A.A.F. 2001); conduct unbecoming an

officer, United States v. Rogers, 54 M.J. 244 (C.A.A.F. 2002);

and numerous drug offenses, e.g., United States v. Campbell, 57

M.J. 134 (C.A.A.F. 2002); United States v. Downing, 56 M.J. 419

(C.A.A.F. 2002); United States v. Grant, 56 M.J. 410 (C.A.A.F.

2002).

     Given the myriad of factual scenarios which might generate

a charge of committing an offense on “divers occasions,” this
United States v. Seider, No. 04-0082/AF


Court should address the issue presented through a fact-specific

inquiry with a fact-specific holding, interpreting Walters

through the lens of its unique facts.    Instead, the majority

applies Walters in a sweeping fashion, with the inevitable

consequence of an immeasurable impact on military justice.

        To this end, the instant case is distinguishable from

Walters.     In Walters, the accused was charged with wrongful use

of ecstasy “at divers occasions” between April 1 and July 18,

2000.    Several witnesses testified as to different uses of

ecstasy by the accused at different times during the spring and

early summer of 2001.    At least one of the witnesses testified

as to use of drugs outside of the charged time frame.    When

instructing the members on findings by exceptions and

substitutions, the military judge stated:

        [I]f you do what is called findings by exceptions and
        substitutions, which is the variance instruction I
        have given you earlier, where you may – and this is
        just an example – on the divers uses, you may find
        just one use, and you except out the words divers uses
        and you substitute in the word one time, or something
        like that . . . .

Walters, 58 M.J. at 393.     The members excepted the words “at

divers occasions” and substituted the words on “one occasion.”

    In reviewing the finding on appeal, a majority of this Court

noted that the verdict was ambiguous and that “[w]hile [the]

hypothetical example of a finding by exceptions and

substitutions was well intended, it was less than complete.”


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United States v. Seider, No. 04-0082/AF


Id. at 396.    The judge did not instruct the members that the

Government must prove a finding of guilty as to a single

occasion beyond a reasonable doubt.   The Court concluded:

          Where a specification alleges wrongful acts on
     “divers occasions,” the members must be instructed
     that any findings by exceptions and substitutions that
     remove the “divers occasions” language must clearly
     reflect the specific instance of conduct upon which
     their modified findings are based. That can generally
     be accomplished through reference in the substituted
     language to a relevant date or other facts in evidence
     that will clearly put the accused and the reviewing
     courts on notice of what conduct served as the basis
     for the findings.

     . . . .

          In sum, the military judge erred in giving
     incomplete instructions regarding the use of findings
     by exceptions and substitutions and in failing to
     secure clarification of the court-martial’s ambiguous
     findings prior to announcement. The Court of Criminal
     Appeals, in turn, could not conduct a factual
     sufficiency review of Appellant’s conviction because
     the findings of guilty and not guilty do not disclose
     the conduct upon which each of them was based.
     Appellant has a substantial right to a full and fair
     review of his conviction under Article 66(c) and the
     ambiguity in the court-martial’s findings results in
     material prejudice to that right. See Article 59(a),
     UCMJ, 10 U.S.C. § 859(a) (2000).

Id. at 396-97.

     The majority’s concern in Walters was that the original

instructions with the hypothetical, the query by the members,

and the ultimate findings made it impossible for the Court of

Criminal Appeals to conduct a factual sufficiency review.    This

concern is not present in the instant case, because the conduct



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United States v. Seider, No. 04-0082/AF


upon which Appellant’s guilty finding was based is clear: the

one occasion of cocaine use described in detail by all three

witnesses.   In other words, in assessing Appellant’s charge of

drug use on “divers occasions,” the members faced two possible

occasions of drug use: one described in extremely similar detail

by three different witnesses, and the other described hazily by

only one witness.   By excepting the words “divers occasions”

from their findings, the members indicated their understanding

that Appellant did not use cocaine on both occasions, but rather

on only one, and it is clear on which occasion that was.   Given

this clarity, the members did not require clarification of the

worksheet based on a confusing hypothetical example by the

military judge as was the case in Walters.   “It is assumed that

twelve men know more of the common affairs of life than does one

man, that they can draw wiser and safer conclusions from

admitted facts thus occurring than can a single judge.”    R.R.

Co. v. Stout, 84 U.S. 657, 664 (1874).

     Moreover, in Walters the lower court made the following

conclusion as to the ambiguity of the appellant’s findings:

          The court members found the appellant guilty of
     the wrongful use of ecstasy on one occasion between
     about 1 April and 18 July 2000. There was ample
     evidence to support this finding, and this Court is
     convinced beyond a reasonable doubt that the appellant
     wrongfully used ecstasy during the period alleged. We
     follow the common-law rule, and presume the court
     members followed the instructions given to them by the



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United States v. Seider, No. 04-0082/AF


     military judge and properly discharged their fact-
     finding responsibility.

United States v. Walters, 57 M.J. 554, 559 (A.F. Ct. Crim. App.

2002).   The lower court gave no indication if it could identify

the one occasion on which the appellant used drugs.    By

contrast, in the case at bar the lower court opined:

     Three witnesses testified that the appellant
     distributed and used cocaine during a card game at the
     appellant’s off-base apartment. One of the three
     witnesses provided vague testimony about one
     additional use of cocaine. Exercising our fact-
     finding power under Article 66(c), UCMJ, we are
     convinced beyond a reasonable doubt that the appellant
     used and distributed cocaine during a card game at the
     appellant’s off-base apartment. We are similarly
     convinced that this was the basis for the court
     members’ finding of guilty for this specification.

United States v. Seider, ACM No. 35154, slip op. at 1-2 (A.F.

Ct. Crim. App. Aug. 11, 2003).   Thus, the Air Force Court

specifically stated that it based its decision on the

corroborating testimony of the three witnesses, which pointed to

Appellant’s cocaine use on one occasion – the first occasion

described by Airman Basic Castonguay, and the only occasion

described by Airmen Basic Bennett and Chavez.   Clearly, the

court was able to identify the one occasion on which Appellant

used cocaine.   Not surprisingly, this is the occasion

overwhelmingly supported by the evidence, a conclusion so

obvious to all parties at the trial that the verdict produced no




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United States v. Seider, No. 04-0082/AF


comment, question, or objection from any party to the

proceedings.

     In short, the level of certainty as to the findings in this

case far exceeds the certainty in Walters.   Indeed, the occasion

of cocaine use for which the members convicted Appellant is

quite clear.   Consequently, the Court of Criminal Appeals in

this case was able to conduct an adequate factual sufficiency

review of Appellant’s conviction, in keeping with Appellant’s

“substantial right to a full and fair review of his conviction

under Article 66(c).”   Walters, 58 M.J. at 397.

     In the instant case, the majority could have limited

Walters to its unique facts, held that the judge failed to

instruct the members that if they find the accused guilty of an

allegation as to divers occasions, the proof as to any one of

those occasions must be beyond a reasonable doubt.   Instead, the

majority has unnecessarily created a sweeping holding.

     Finally, the majority fails to recognize that because

Appellant waived the issue by remaining silent at trial, he

cannot prevail on appeal in the absence of plain error.

Specifically, defense counsel failed to move for a bill of

particulars, failed to move to limit duplicitous pleadings, and

failed to object to the members’ findings.

     Failure by a party . . . to make motions or requests
     which must be made before pleas are entered . . .
     shall constitute waiver. . . . Other motions,


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United States v. Seider, No. 04-0082/AF


     requests, defenses, or objections, except lack of
     jurisdiction or failure of a charge to allege an
     offense, must be raised before the court-martial is
     adjourned for that case and, unless otherwise provided
     in this Manual, failure to do so shall constitute
     waiver.

Rule for Courts-Martial 905(e).   Because Appellant did not at

trial challenge what he in retrospect alleges were ambiguous

findings, he should not now be afforded the opportunity to

address what “could have been dealt with by a timely objection

or motion at trial.”   United States v. Huffman, 40 M.J. 225, 229

(C.M.A. 1994)(Crawford, J., dissenting in part and concurring in

the result).

     “If an error is waived, further consideration of its effect

is simply estopped unless it qualifies as ‘plain error’. . . .”

United States v. Deachin, 22 M.J. 611, 614 (A.C.M.R. 1986)

(citing United States v. Tyler, 17 M.J. 381, 385-86 (C.M.A.

1984)); see also United States v. Causey, 37 M.J. 308, 311

(C.M.A. 1993).   To remedy an error not raised at trial, an

appellate court must find (1) a deviation from a legal rule, (2)

that is clear under current law, (3) that is materially

prejudicial, and that (4) seriously affects the fairness,

integrity, or public perception of judicial proceedings.    See

United States v. Johnson, 520 U.S. 461, 467 (1997); United

States v. Olano, 507 U.S. 725, 732 (1993).




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United States v. Seider, No. 04-0082/AF


     Even assuming error in the military judge’s instructions to

the members, such action did not materially prejudice Appellant.

The evidence of record overwhelmingly supports two conclusions:

(1) Appellant is guilty beyond a reasonable doubt of using

cocaine; and (2) he committed this act on the one occasion

supported by all three witnesses.   Thus, any error on the part

of the military judge in failing properly to instruct the

members on findings by exceptions and substitutions did not

prejudice Appellant.

     For these reasons, I respectfully dissent.




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