

   
   
   
   U.S. v. Southwick



UNITED STATES, Appellee
v.
Stefanie L. SOUTHWICK, Captain
U.S. Air Force, Appellant
 
No. 99-0832
Crim. App. No. 32667
 
United States Court of Appeals for the Armed
Forces
Argued March 1, 2000
Decided August 30, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined. SULLIVAN,
J., filed
an opinion concurring in part and in the
result.
CRAWFORD, C.J., filed an opinion concurring
in the
result as to Issue I and concurring as
to Issue II.
Counsel
For Appellant: Captain Michael J. Apol
(argued); Colonel Jeanne M. Rueth (on brief); Lieutenant Colonel
James R. Wise.
For Appellee: Captain Peter J. Camp
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief); Major Steven R. Parrish.
Military Judge: Dennis E. Kansala
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE delivered the opinion of the Court.
A general court-martial convicted appellant,
contrary to her pleas, of conduct unbecoming an officer, wrongfully distributing
ecstasy, and wrongfully distributing cocaine (2 specifications), in violation
of Articles 133 and 112a, Uniform Code of Military Justice, 10 USC §§
933 and 912a, respectively. The court-martial sentenced her to a dismissal,
confinement for one year, and total forfeitures. The convening authority
approved the sentence except for all but 14 days of unserved confinement.
In an unpublished opinion, the Court of Criminal Appeals affirmed the findings
and sentence, but granted relief from the provisions of Article 57(a),
UCMJ, 10 USC § 857(a). See United States v. Gorski,
47 MJ 370 (1997).
Our Court granted review of the following issues:


I
WHETHER IT WAS PLAIN ERROR TO ALLOW THE INTRODUCTION
OF TESTIMONY THAT THE PROSECUTIONS SOLE WITNESS TO THE ALLEGED OFFENSES
UNDERTOOK AN OSI POLYGRAPH.

II
WHETHER IT WAS PLAIN ERROR FOR THE MILITARY
JUDGE, AFTER HEARING APPELLANTS UNSWORN STATEMENT WHEREIN SHE DETAILED
THE PRETRIAL PUNISHMENT TO WHICH SHE HAD BEEN SUBJECTED, TO NOT ADDRESS
THIS ISSUE AND GRANT ADDITIONAL CONFINEMENT CREDIT.

For the reasons set out below, we affirm.

I. POLYGRAPH EVIDENCE
A. Factual Background
Senior Airman (SrA) Randall, an enlisted security
policeman working as an informant for the Air Force Office of Special Investigations
(OSI), was a key prosecution witness. SrA Randall testified that he made
three controlled buys of drugs from appellant. Immediately after the third
controlled buy, OSI agents and local police executed a search warrant at
appellants apartment and seized the marked money used by Randall to make
the controlled buy.
During cross-examination by defense counsel,
Randall was asked about the investigation of his background before he became
an informant. He responded, "Agent Andreini checked with some of my work
colleagues. He checked my 398. I even underwent a polygraph test at Randolph
Air Force Base."
Defense counsel called an expert witness to
show that OSI had conducted an inadequate background investigation of Randall
before relying on him as an informant. During cross-examination by trial
counsel, the expert witness admitted that he did not review the background
investigation of Randall. Trial counsel asked, "[A]nd do you know that
they gave Airman Randall a polygraph?" The witness responded, "I just heard
it through the testimony, I didnt review it on paper that he had been
administered a polygraph."
The prosecution then called OSI Special Agent
(SA) Otis to defend the OSIs methods to establish the reliability of their
informants. During cross-examination, defense counsel asked SA Otis what
kinds of things were done other than examining records. SA Otis responded:

When youre dealing with someone as a potential
informant, you interview them, attempt to determine what their motivation
is, what their access is, whats transpired, that brings them to you to
begin with. You conduct background checks, run computer checks to determine
whether the individual has any sort of a criminal record. Again, go to
a personnel jacket, find out if he has a UIF [unfavorable information file],
what other information might not be readily apparent. Secondarily to that,
we generally use a polygraph examination.

* * *
Were talking in generalities here, are we
not? I told you -- I referenced a few minutes ago the fact that this gentleman
[Randall] was polygraphed, which is generally one of the things that we
do to, again, establish the veracity of the person thats involved.

During argument on findings, trial counsel argued
that Randall was not the typical informant trying to cut a deal after getting
caught in the drug trade. He argued that Randalls background had been
thoroughly checked, that he was "an elite gate guard" with a high-level
security clearance. He mentioned that OSI polygraphed him before accepting
him as an informant.
At no time during the trial did defense counsel
object to the mention of the polygraph or move to strike any testimony
regarding the polygraph or request limiting instructions.

B. Discussion
Mil. R. Evid. 707, Manual for Courts-Martial,
United States (1998 ed.), provides: "Notwithstanding any other provision
of law, the results of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to take, or taking
of a polygraph examination, shall not be admitted in evidence." The constitutionality
of this blanket prohibition was upheld by the Supreme Court in United
States v. Scheffer, 523 U.S. 303 (1998).
Where, as in this case, there was no timely
objection to polygraph evidence, we review for plain error. We will take
notice of asserted errors even though not raised at trial if the appellant
demonstrates that there was an error, that the error was clear or obvious,
and that the error materially prejudiced appellants substantial rights.
United
States v. Powell, 49 MJ 460, 465 (1998). Although there was an error
in this case that was clear or obvious, appellant has not convinced us
that a substantial right was materially prejudiced. The relationship between
the polygraph and the evidence on the merits is even more attenuated in
this case than it was in United States v. Clark, No. 99-0545, ___
MJ ___ (August 16, 2000). In this case, the polygraph evidence was not
presented as substantive proof of the offenses. There was no evidence of
the subject matter of the polygraph interview and no evidence of any responses
to questions. There is no suggestion that the polygraph was used to measure
the truthfulness of SrA Randalls reports to his OSI superiors regarding
appellants misconduct. The polygraph was not mentioned to bolster any
aspect of Randalls testimony. It was mentioned merely to describe one
of the many steps used by the OSI at the outset to determine that Randall
was sufficiently trustworthy to be used as an informant. Finally, it was
defense counsel who elicited the disclosure regarding the polygraph examination.

II. PRETRIAL PUNISHMENT
A. Factual Background
During an unsworn statement on sentencing,
appellant stated:

Since February, Ive been working at the
HAWC on Main Base Kelly which is the Health and Wellness Center. Ive been
working at the front desk as a receptionist. Im the only military person
at the HAWC, the Health and Wellness Center, who is not allowed to wear
their uniform. I have had to wear civilian clothes every single day. Ive
been stripped of my rank. Ive been called Stefanie by all personnel, including
enlisted and all GS employees, including a GS-5, and given work by these
people. When I brought my concerns regarding this matter to Lieutenant
Colonel Kuhfahl, my commander, . . . they decided it was acceptable for
everyone to call me Stef.

A handwritten copy of the statement was admitted
and given to the court members.
The defense argument on sentencing included
the following:

To the extent that youre wanting Captain
Southwick to think about whats happened and what she did wrong, consider
what shes been dealing with since February of this year working at the
HAWC. Members, shes still a Captain in the United States Air Force, and
shes not allowed to wear her uniform to work. Shes not allowed to call
herself Captain Southwick. Shes not referred to as Captain Southwick or
maam by the enlisted members, by the low ranking GS personnel. Shes not
doing work for which shes qualified and which is commensurate with her
grade. Members, thats punishment, and it also gives her time to think
about and reflect on what it was she did that brought her to that station
in life. And think about how her commander, Colonel Kuhfahl, reacted when
she voiced her concerns. Sir, Im not being treated like a captain. Im
under investigation. Im pending court-martial. Im still a captain in
the United States Air Force. Thats okay. Everybody can call you Stef.
The enlisted members, the civilians, theyre going to give you work, and
youre going to have to do it. And, members, that is punishment. Its pretrial
punishment, and you need to consider the effect that had on her and on
the Air Force at large, that unit. You have got to weigh that.

Trial counsel responded with the following argument:

[Defense counsel] also made some comments
about how [appellants] been punished already because shes been stripped
of her rank and people call her Stef. Well, what did she say to Senior
Airman Randall to call her? Stef. What did he call her on the tape? Hey,
Babe. Did she get ticked off about that? Whats the difference? Tell me
where theres punishment there.

The defense did not ask the military judge to
give appellant credit for pretrial punishment, and the military judge did
not do so sua sponte. However, after trial, five of the seven members
who sat on appellants case submitted recommendations for clemency. The
recommendation for clemency from the second-ranking member included the
following:

c. The seemingly callous handling of Capt
Southwick by our "Air Force Family" from her time of arrival here, after
the death of her father, and through the preliminary portions of her court
martial go against the common decency and camaraderie I have come to appreciate
in my professional career. In essence (as revealed in the court record),
Capt Southwick was stripped of her uniform, made to wear civilian clothes
to work, and was addressed as a civilian throughout the time she was awaiting
proper trial and sentencing.
d. Finally, the Court President (Col Livingston)
and I were so disturbed by the chain of events listed above that we personally
brought our concerns to [the convening authority], in the hopes that these
kinds of situations might be averted in the future. I am firmly convinced
that our Air Force "family" should and will do better not only in taking
care of our own, but also in treating our officers with the appropriate
respect due them until they are relieved officially of their rank
and responsibilities by a proper court.

Contrary to his staff judge advocates recommendation,
the convening authority disapproved all unserved confinement except for
14 days, effectively reducing the confinement to time served plus 14 days.
This action served to reduce appellants period of confinement from the
adjudged one year to slightly less than 8 months.
Post-trial affidavits from appellant, her squadron
commander, and her squadron section commander were submitted to the court
below. All parties agree that appellant worked for approximately 6 months
at the Health and Wellness Center (HAWC) and that she worked in gym clothes
instead of a military uniform.
Appellants commanders do not dispute her statement
that she was commonly addressed by her first name instead of by rank, and
that she complained to them about it. They dispute her contention that
they instructed her to identify herself by her first name instead of by
rank. Her squadron section commander stated that she offered to speak with
the HAWC director about the appropriate manner of addressing appellant
but appellant did not raise the issue again.
Appellants commanders dispute her assertion
that she was assigned to the HAWC against her will. They state that she
requested the HAWC assignment.
Appellants commanders dispute her assertion
that she was not allowed to wear her uniform. They state that she seemed
pleased with working in gym clothing instead of a uniform.

B. Discussion
Article 13, UCMJ, 10 USC § 813, prohibits
pretrial punishment. In United States v. Palmiter, 20 MJ 90, 95
(1985), this Court said that "in the absence of a showing of intent to
punish, a court must look to see if a particular restriction or condition,
which may on its face appear to be punishment, is instead but an incident
of a legitimate nonpunitive governmental objective[,]" quoting Bell
v. Wolfish, 441 U.S. 520, 539 n.20 (1979). In United States v. Huffman,
40 MJ 225, 227 (1994), a closely split decision, this Court held that pretrial
punishment is not waived by failure to raise the issue at trial, "unless
there is an affirmative, fully developed waiver on the record."
We hold that appellants trial tactics were
tantamount to an affirmative waiver in this case, because they involved
an election between two available alternatives. It is clear from the record
that appellant made a tactical decision to take the pretrial-punishment
issue to the members instead of asking the military judge for appropriate
relief under RCM 906, Manual, supra. Cf. United States
v. Gammons, 51 MJ 169, 182-84 (1999) (In a trial with members, an accused
has the option to request credit for nonjudicial punishment from the military
judge or present the issue to the members during the sentencing hearing.);
United
States v. Edwards, 42 MJ 381 (1995) (In a bench trial, an accused has
the option of seeking relief for prior nonjudicial punishment from the
military judge or the convening authority.). In her oral unsworn statement
before the members, appellant asserted that she had been mistreated. She
presented the members with a written statement making the same complaint.
In sentencing argument, her counsel argued that she had been the victim
of pretrial punishment.
The tactic was successful, because five of
the seven members submitted recommendations for clemency, and the two most
senior members were so outraged that they personally brought the matter
to the attention of the convening authority. Appellant raised the issue
again with the convening authority. The convening authority rejected his
staff judge advocates recommendation and granted clemency by reducing
appellants confinement to time served plus 14 days. In our view, this
record amply demonstrates a tactical decision to seek relief for pretrial
punishment from the members instead of the military judge.
We cannot determine precisely how the evidence
affected the deliberations on sentence. See RCM 1007(c) and Mil.
R. Evid. 606(b) (inquiry into deliberations and voting prohibited). However,
the clemency petitions and post-trial action clearly demonstrate that the
evidence had a substantial impact on the members and the convening authority.
We hold that, under the circumstances of this case, it was not plain error
for the military judge not to grant, sua sponte, additional confinement
credit for pretrial punishment.

III. Decision
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in part and in
the result):
I agree that in a plain-error case the burden
is on appellant to show error which "materially prejudice[d] . . . substantial
rights." Article 59(a), UCMJ, 10 USC § 859(a). I also agree that in
determining whether such prejudice exists, the appellate court must look
at how the outcome of the proceedings was impacted by the error. Anything
said in United States v. Powell, 49 MJ 460 (1998), to the contrary,
should be disregarded as dicta.
As for the second issue in this case, I disagree
that waiver occurred in this case. However, I agree there was no plain
error shown in this case and can join the majority in affirming. Appellant
did not show that her pretrial assignment and treatment was intended as
punishment. See Bell v. Wolfish, 441 U.S. 520 (1979).


CRAWFORD, Chief Judge (concurring in the result
as to Issue I and concurring as to Issue II):
I disagree that admission of the polygraph
evidence to support the background check of an informant was error. The
majority seeks to avoid admission of the "P" word where a party opponent
aims in bad faith to draw an inference that can be shown to be untrue based
on evidence that a polygraph was administered. Certainly the opponent is
allowed to rebut the improper inferences.
The defense theory of the case was to attack
the investigation conducted by the Office of Special Investigations (OSI),
specifically the reliability of the informant. Of the three controlled
buys of drugs from appellant, only the last buy was recorded because the
informant was wired. On cross-examination and in response to a question
by defense counsel, the informant testified that he was given a polygraph
before becoming an informant, as part of his background check. There was
no objection or motion to strike. Trial defense counsel also called Mr.
Stephen Saunders, as the defense expert, to show that the OSI conducted
an inadequate background investigation. During the cross-examination of
Mr. Saunders, trial counsel elicited the fact that the informant was given
a polygraph as part of his background check. Special Agent Dana P. Otis
was called to talk about the methods employed to establish credibility
of informants before they are used by the OSI. Later, during defense counsels
cross-examination, Agent Otis mentioned use of polygraphs to establish
an informants credibility. Again, there was no objection or motion to
strike.
By not objecting or moving to strike the initial
answer by the informant, the defense opened the door for additional questions
by trial counsel. "[W]e have consistently declined to support a rule which
would permit the defense to induce the error and then take advantage of
it on appeal." United States v. Catt, 1 MJ 41, 47 (CMA 1975).
Professor Imwinkelried sets forth an example
of opening

the door for the introduction of otherwise
inadmissible evidence. Suppose, for example, that on cross-examination
of a police officer, the defense challenges the thoroughness of the investigation
that led to the accuseds arrest. On redirect to meet that challenge, the
prosecution may elicit the officers testimony that she saw no need for
further investigation because she learned that the accused had failed two
polygraph tests about the crime. The prosecution may do so even if polygraph
evidence is ordinarily inadmissible in the jurisdiction.

Edward J. Imwinkelried, Paul C. Giannelli, Francis
A. Gilligan, & Frederic I. Lederer, Courtroom Criminal Evidence
§ 304 at 80 (3d ed. 1998)(footnotes omitted).
The defense could have used the discovery process
to determine whether various investigative techniques were used, including
polygraph examinations of the informants or victims. See United
States v. Simmons, 38 MJ 376 (CMA 1993)(prosecution had a duty to disclose
statements made during polygraph examination of victim). Instead, the defense
chose to raise in bad faith an inference it knew to be untrue hiding behind
what they hoped to be inadmissible evidence, e.g., a polygraph).
See
Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999)(prosecution
argued in bad faith knowing that exculpatory polygraph evidence was not
admissible). We cannot sanction this conduct by permitting such inferences
to go unrebutted just because polygraph evidence is at issue; to do so
would provide a "safe harbor" for improper trial tactics.
Even if the door is not opened by the defense
when the defense attacks the background check of an informant, the Government
must be able to respond without one hand tied behind its back. It is a
common investigative technique to employ polygraphs to ensure the reliability
of informants before they are used. See United States v. Havens,
446 U.S. 620 (1980). Without this evidence to rebut the inference of an
inadequate background check, court members would be presented with an incomplete
picture. See, e.g., Paxton, 199 F.3d at 1216-17.
Likewise in United States v. Baron,
94 F.3d 1312 (9th Cir.), cert. denied, 519 U.S. 1047
(1996), the defendant opened the door on cross-examination to the inference
that the defendant was not a typical drug courier. The court held that
while profile evidence is normally inadmissible, the prosecution may use
profile evidence on redirect examination to rebut this defense inference.
Id.
at 1321. Also, in Clark v. State, 629 A.2d 1239 (Md. 1993), the
court indicated that the judge has the discretion to permit inadmissible
evidence to be admitted if prejudicial inadmissible evidence was admitted
without timely objection or timely motion to strike. Maryland Rule 5-611(a)
allows the judge to admit inadmissible evidence to "make the interrogation
and presentation effective for the ascertainment of the truth."
This is not an instance where the prosecution
is seeking to introduce a polygraph of a party-opponent related to the
charges in the case. Rather, the purpose of the polygraph is solely to
determine whether investigators performed an adequate background investigation
on an informant before the informant was involved in the case. The federal
courts have held that while polygraphs are not admissible except in limited
circumstances, a polygraph examination may be used to establish the reliability
of the informant. Cf. United States v. Light, 48 MJ 187 (1998).
Likewise, where a confession is obtained from a suspect as a result of
a polygraph examination, we would not exclude the evidence that the polygraph
partially induced the confession. See United States v. Kampiles,
609 F.2d 1233, 1244 (7th Cir. 1979), cert. denied,
446 U.S. 954 (1980). The majority would apparently allow the defense a
safe harbor anytime the "P" word is used.
As to Issue II this Court has dealt with this
issue on a case-by-case basis. Now, however, this opinion, as well as United
States v. Rosendahl, No. 99-0584, ___ MJ ___ (August 25, 2000), and
United
States v. Rock, 52 MJ 154 (1999), provide additional guidance and hopefully
some uniformity and certainty.
This Court has been diligent in ensuring that
servicemembers are provided credit for pretrial confinement,1
restriction tantamount to confinement,2
Article 13 violations, and prior non-judicial punishment under Article
15, UCMJ, 10 USC § 815.3
Credit may also be given for failure to provide:
counsel, RCM 305(f); a review by the commander, RCM 305(h); a 48-hour review,
or a 7-day review, RCM 305(i); and a review by the military judge, RCM
305(j). But we should encourage defense counsel to seek credit in the first
instance at the court-martial. If I were advising defense counsel today,
I would recommend that they not raise the issue at trial where the Government
would have a chance to present a case but rather raise the issue on appeal
on the basis of affidavits after memories have grown stale, individuals
have moved, and the Government has greater difficulty rebutting the allegations.
See
United States v. Branch, No. 9801790 (Army Ct.Crim.App., March 7,
2000), pet pending, No. 00-0381 (2000)(petition to obtain
additional credit for an alleged violation of Article 13 -- issue not raised
at court-martial or before Court of Criminal Appeals).
The accused serves as the gatekeeper in deciding
who should apply the credit. Where the allegations of the onerous conditions
are presented to the sentencing authority prior to sentencing, including
Article 13 violations and prior non-judicial punishment, those factors
will be taken into consideration when the sentence is adjudged and are
not required to be applied against the approved sentence. The convening
authority has the option to grant clemency or otherwise reduce the sentence
for any or no reason.
As this Court stated in United States v.
Rock, supra, whenever there is a trial by judge alone, the judge
can announce on the record that the credit was given for any of the areas
mentioned above.

Thus, credit against confinement awarded
by a military judge always applies against the sentence adjudged
- unless the pretrial agreement itself dictates otherwise.

52 MJ at 156-57 (emphasis in original).
The judge in Rock refused to treat various
restrictions on pretrial liberties as restriction tantamount to confinement
or a violation of Article 13. However, the judge found that not allowing
an infantryman to train in his military specialty and to perform normal
basic details was a violation of Article 13 and awarded 1.5 days credit
per day of punishment. The only issue in Rock was whether the credit
should be applied against the adjudged or approved sentence. After listing
the various credits mentioned earlier, including United States v. Allen,
17 MJ 126 (CMA 1984); United States v. Pierce, 27 MJ 367 (CMA 1989);
United
States v. Suzuki, 14 MJ 491 (CMA 1983); and RCM 305(k), the
Rock
Court stated:

Where there is no pretrial agreement ...
the credit can only be applied against the adjudged sentence; ... The adjudged
sentence becomes a maximum punishment .... Here, of course, the military
judge did just that.

52 MJ at 157.
Where the adjudged sentence is less than the
maximum provided in the agreement, the adjudged sentence establishes the
maximum confinement.

Where portions of that confinement have already
been served, actually or constructively, the credit applies against the
agreement; otherwise the accuseds sentence will exceed the maximum lawful
limit.

This Court said that the "time credited by the
military judge, however, did not involve confinement, nor was it tantamount
to confinement." Thus, no action was required by the convening authority
in approving the sentence. "Servicemembers are not entitled to sentence
credit against confinement for any and all time during the pendency of
court-martial charges, even if restraints on liberty which are not tantamount
to confinement are imposed." 52 MJ at 157.
However, in any trial by members, the accused
is the gatekeeper as to Article 13 violations, prior non-judicial punishment,
and restrictions on liberty that have not been determined tantamount to
confinement. This may be part of the extenuation and mitigation presented
to the members. In any event, the members may be instructed based on a
request of a party that the accused will get credit for pretrial confinement
of day-for-day for a certain period of time. This allows the members to
decide what the sentence might be in any particular case. Where the instruction
is given in a trial before members, the day-for-day credit for pretrial
confinement and restriction tantamount to confinement will not be applied
to the approved sentence where the accused as a gatekeeper decides to present
the information as to Article 13 violations, unduly rigorous circumstances,
or prior non-judicial punishment to the members.
For this reason I concur in the result as to
Issue I and concur as to Issue II.
FOOTNOTES:
1 United States
v. Allen, 17 MJ 126 (CMA 1984).
2United
States v. Mason, 19 MJ 274 (CMA 1985).
3United
States v. Gammons, 51 MJ 169 (1999).


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