

   
   
   
   U.S. v. Rolle



IN THE CASE OF
UNITED STATES, Appellee
v.
Patrick B. ROLLE, Staff Sergeant
U.S. Army, Appellant
 
No. 98-0656
Crim. App. No. 9601336
 
United States Court of Appeals for the Armed
Forces
Argued December 9, 1999
Decided July 17, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and EVERETT and COX, S.JJ., joined.
SULLIVAN, J., filed an opinion concurring
in part
and in the result.
Counsel
For Appellant: Captain Blair T. OConnor
(argued); Colonel John T. Phelps, II, Colonel Adele H. Odegard,
and Captain Kirsten V. Campbell-Brunson (on brief); Major Holly
S. G. Coffey, Captain Jodi E. Terwilliger-Stacey, and Captain
Norman R. Zamboni.
For Appellee: Captain Troy A. Smith
(argued); Colonel Russell S. Estey and Major Patricia A. Ham
(on brief).
Military Judge: Larry R. Dean
 
 



THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.



Judge GIERKE delivered the opinion of the Court.
A special court-martial convicted appellant,
pursuant to his pleas, of wrongful use of cocaine, in violation of Article
112a, Uniform Code of Military Justice, 10 USC § 912a. The adjudged
and approved sentence provides for a bad-conduct discharge and reduction
to the lowest enlisted grade. The Court of Criminal Appeals affirmed in
an unpublished opinion.
This Court granted review of the following
issues:


I
WHETHER THE MILITARY JUDGE ERRED BY DENYING
SSG ROLLES CAUSAL CHALLENGE AGAINST TWO (2) PANEL MEMBERS WHO STATED THEY
COULD NOT CONSIDER THE FULL RANGE OF PUNISHMENT, TO INCLUDE NO PUNISHMENT.

II
WHETHER THE APPLICATION OF ARTICLE 57(a), 10
USC § 857(a), VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION
WITH RESPECT TO APPELLANT WHERE THE OFFENSE OF WHICH APPELLANT WAS CONVICTED
OCCURRED BEFORE APRIL 1, 1996, WHERE APPELLANT WAS SENTENCED ON AUGUST
8, 1996, WHERE THE CONVENING AUTHORITY DID NOT TAKE ACTION ON APPELLANTS
CASE UNTIL NOVEMBER 14, 1996, AND WHERE THE ADJUDGED COURT-MARTIAL SENTENCE
INCLUDED A BAD-CONDUCT DISCHARGE AND REDUCTION TO THE GRADE OF PRIVATE
E-1. United States v. Gorski, 47 MJ 370 (1997).

For the reasons set out below, we hold that the
military judge did not abuse his discretion by denying the challenges for
cause. Issue II requires a remand to the court below.

Factual Background
The court-martial was composed of officer and
enlisted members. The first granted issue involves two members, Command
Sergeant Major (CSM) Legoas and Sergeant First Class (SFC) Walder. During
general voir dire by trial counsel, all members expressed their
willingness and ability to be "fair, impartial, and open-minded in [their]
consideration of an appropriate sentence." During general voir dire
by defense counsel, all members acknowledged that a guilty plea demonstrates
acceptance of responsibility. All members agreed with defense counsel "that
a federal conviction is in and of itself punishment" that would foreclose
"many opportunities and privileges." No member felt obliged to adjudge
a punitive discharge, confinement, or reduction in grade because of the
nature of the offense. All members understood that "with the judges instructions
[they were] authorized to adjudge no punishment." Only one member expressed
inability to follow such an instruction, and he was successfully challenged
for cause.
The defense concern about the sentencing attitudes
of the members was triggered by trial counsels question whether the members
could let appellant stay in the military "irrespective of whether [they
thought] he could have a successful career afterwards." CSM Legoas responded,
"I wouldnt [let him stay]." Upon further questioning, CSM Legoas agreed
that what he meant was that he did not think appellant could have a successful
career.
Defense counsel picked up on that cue and asked
whether the members could, "on the judges instruction, come back and keep
[appellant] in the United States Army?" Four members, including CSM Legoas,
indicated they would have a problem with that. One member responded, "Its
my opinion that as a result of this action Sergeant Rolles career is over
and we should allow it to be over. Thats my opinion." The military judge
later sustained a challenge for cause against that member.
CSM Legoas then spontaneously directed the
following comment to defense counsel:

You know, due to your question and what the
judge has just said in there. I think theyre two different things. You
are asking whether he should be retained in the Army and we should support
that irregardless of what the judge just said, you know, its just a matter
of how were going -- if were going to punish him is going to be through
a discharge or an administration elimination from the Army.

CSM Legoas concluded his spontaneous statement
by saying that he could not support retaining someone in the Army who would
not enforce Army rules.
During individual voir dire of CSM Legoas,
the following colloquy occurred:

DC: Near the end of my questioning of the
members, I asked do you all understand that through the judges instructions
you are authorized to adjudge no punishment in this case.
MBR (CSM Legoas): Right.
DC: And you indicated that there may be some
problem. Can you elaborate please, sir?
MBR (CSM Legoas): An individual that admits
guilt through some - some criminal act cannot be going unpunished although
he may have a lot of mitigating circumstances, et cetera, he already admitted
guilt. And by that fact in my opinion that I already know ----
DC: So in your mind guilt equals punishment?
Is that a safe assessment?
MBR (CSM Legoas): Could be. Like I say, you
know I would take in consideration all the mitigating circumstances, but
when somebody has admitted guilt, I am inclined to believe that probably
there is some punishment in order there.
DC: And you say "inclined", are you predisposed?
I mean, do you feel that hes guilty now we must punish him?
MBR (CSM Legoas): Something must show me, must
show me as a mitigating circumstance perhaps you know that the guy does
not deserve punishment, but I very seriously doubt that he will go without
punishment.
DC: So, maybe short of bringing the Pope forward,
its going to be very hard for you to ----
MBR (CSM Legoas): I think  yes sir; it would
be.
DC: I have nothing further sir.
MJ: Captain Schuett?
TC: Yes, I do.
TC: Sergeant Major, when the judge instructs
if you become a member of the panel that youre to consider all punishment
up to including no punishment. Will you be able to follow that instruction?
MBR (CSM Legoas): Yeah, I would be able to
follow that, sir. Ive got to be fair as much as I can be, sir.
TC: Right. So even though that you know that
yeah, in a part of your mind just like every other human if somebody admits
guilt you know you think you know the natural reaction you think punishment.
Colonel Dean says to you Sergeant Major you need to consider up to and
including no punishment you can go back in ----
MBR (CSM Legoas): That is correct, sir.
TC: ---- there and if the circumstances warrant
you can vote for it?
MBR (CMS Legoas): Ill never exclude that possibility
that the individual could not go unpunished, sir.
TC: Thank you. I have nothing further at this
time.
DC: Sir, just a follow-up.
DC: Sergeant Major, its not so much what Colonel
Dean instructs to, its what you inside can do.
MBR (CSM Legoas): Same way, sir. It is the
same way, sir. For all fairness, Id have to consider everything. The man
can go - may go unpunished if, you know, if the evidence is that strong,
but right now my disposition is somebody that admits guilt, perhaps punishment
is in order.
DC: So now we have to convince you that no
punishment is warranted?
MBR (CSM Legoas): Thats correct, sir.

During individual voir dire of SFC Walder,
the following colloquy occurred:

DC: Sergeant Walder, I just have a few questions
to follow-up from before. One of the questions that I asked all the members
was do all of you understand that through the judges instructions youre
authorized to adjudge no punishment in this case. And, your answer indicated
that you could not. Could you please elaborate?
MBR (SFC Walder): Now, I understand that question
as being - could you repeat that?
DC: Sure.
MBR (SFC Walder): Repeat that again, sir.
DC: Part of the punishment or the scope in
the punishment can go from max of six months, reduction to lowest enlisted
grade, six months confinement, forfeiture of pay of two-thirds, or to the
other end of the spectrum: no punishment at all. Okay? Can you give that
kind of a sentence in this case?
MBR (SFC Walder): Can I give the sentence as
far as no punishment at all?
DC: Thats correct.
MBR (SFC Walder): No, I cant sir.
DC: You cannot. Youve excluded that all together?
MBR: (SFC Walder): Ah, I havent excluded it,
sir. He, based upon him, he said that he was guilty, admitted as being
guilty. Can I consider it? No, because basically it seems like facts have
been presented to me because he evidentially said that he was guilty. And,
I cant consider not punishing him at all, sir.
DC: I have nothing further, sir.
MJ: Go ahead.
TC: I have a few questions for you. How you
doing, Sergeant Walder?
MBR (SFC Walder): Fine, sir.
TC: You have heard the fact that he has plead
guilty ---
MBR (SFC Walder): Yes, sir.
TC: ---- but we have yet to present to you
the facts surrounding this guilty plea ----
MBR (SFC Walder): All right, sir.
TC: If the judge instructs you, if youre a
member of the panel, that you have to consider all the evidence. All the
evidence is getting ready to come in. Now you have to consider it all the
way up and down. Can you consider it all the way up and down if there is
some fact that comes out during the presentation of evidence that will
lead you to believe okay, yeah hes technically guilty, but I dont want
to punish him? Can you consider that if some evidence comes out because
the judge will instruct you to look at all the evidence, can you consider
no punishment at that time?
MBR (SFC Walder): Depending on the evidence;
yes, sir.
TC: Thank you. I have nothing further.
DC: Just one question.
DC: So then after you hear everything in your
- whats inside you and your conscious, you can say, Sergeant Rolle, no
punishment?
MBR (SFC Walder): I can consider it, sir, but
I - theres a thin line that I cannot punish him at all.
DC: Explain the thin line to me please?
MBR (SFC Walder): Knowing that he already admitted
that he was guilty, sir. Yes, I can consider it, but would that evidence
weigh in my decision not to punish him, no. No, it wouldnt, sir.
DC: So again you have your mind made up that
you cannot?
MBR (SFC Walder): Yes, sir.
DC: Give no punishment?
MBR (SFC Walder): Thats right.
DC: Nothing further.
TC: Your Honor?
MJ: Go ahead.
TC: I think were lawyering to be perfectly
honest. I mean I think that you know Sergeant Walder says one thing to
me and we get up and say different words you know. Let me just ask you
this one last time is, if all the evidence presented and something does
come in, you know whatever it could be that would lead you to believe that
okay, he doesnt deserve punishment you said earlier and I would just like
you to clarify it again. Could you give Staff Sergeant Rolle no punishment?
MBR (SFC Walder): Could I give him -- no, sir.
TC: Okay, so even if something came in, even
if a piece of evidence that led you to believe --
MBR (SFC Walder): No, sir.
TC: Okay. Thank you.

The military judge denied the challenges for cause
against CSM Legoas and SFC Walder. The defense then used its one peremptory
challenge against SFC Walder.
The defense case on sentencing focused on appellants
service record and potential for rehabilitation. Five noncommissioned officers
-- a sergeant, two staff sergeants, a sergeant first class, and a first
sergeant -- testified on his behalf. In an unsworn statement, appellant
expressed remorse and shame for his use of cocaine. He told the court members
that, based on his misconduct, he was not sure that he was worthy to wear
the uniform again.
In his sentencing argument, defense counsel
emphasized appellants remorse and his potential for rehabilitation. He
argued that "[a] federal conviction, sitting by itself without getting
wrapped around the axle about the no punishment issue," is punishment.
After pointing out that the sentence worksheet listed a range of punishments
from "no punishment," the least severe, to confinement and punitive discharge,
the most severe, he asked the court members not to discharge or confine
appellant. He did not ask the court members to impose a sentence to no
punishment.

Discussion
Appellant asserts that the military judge abused
his discretion in applying the liberal-grant mandate, because CSM Legoas
and SFC Walder indicated that they would not be able to consider a sentence
to no punishment. The Government argues that the military judge did not
abuse his discretion because neither member expressed an inelastic attitude
toward sentencing.
RCM 912(f)(1)(N), Manual for Courts-Martial,
United States (1995 ed.),*
requires that a member be removed for cause if that member "[s]hould not
sit as a member in the interest of having the court-martial free from substantial
doubt as to legality, fairness, and impartiality." Under this rule, a member
is disqualified if he or she "has an inelastic opinion concerning an appropriate
sentence for the offenses charged." RCM 912(f)(1)(N), Discussion. RCM 912(f)(3)
provides that "[t]he burden of establishing that grounds for a challenge
exist is upon the party making the challenge."
On appeal, a military judges ruling on a challenge
for cause is given "great deference." United States v. Rome, 47
MJ 467, 469 (1998). We will reverse only for a "clear abuse of discretion."
United
States v. White, 36 MJ 284, 287 (1995).
Predisposition to impose some punishment is
not automatically disqualifying. United States v. Jefferson, 44
MJ 312, 319 (1996); United States v. Tippit, 9 MJ 106, 107 (CMA
1980). "[T]he test is whether the members attitude is of such a nature
that he will not yield to the evidence presented and the judges instructions."
United
States v. McGowan, 7 MJ 205, 206 (CMA 1979). Recently, in
United
States v. Schlamer, 52 MJ 80, 93 (1999), we observed that "[a]n inflexible
member is disqualified; a tough member is not."
The issue in this case arises from questions
propounded to the members in a vacuum, before they heard any evidence or
received instructions from the military judge. In United States v. Heriot,
21 MJ 11, 13 (CMA 1985), this Court stated that it was "sympathetic with
the plight of court-martial members who on voir dire are asked hypothetical
questions about the sentence they would adjudge in the event of conviction."
We expressed reluctance "to hold that a prospective member who is not evasive
and admits to harboring an opinion that many others would share -- such
as that a convicted drug dealer should not remain a noncommissioned officer
or should be separated from the armed services -- must automatically be
excluded if challenged for cause." Id. In United States v. Reynolds,
23 MJ 292, 294 (CMA 1987), this Court held that neither side "is entitled
to a commitment" during voir dire about "what they will ultimately
do." See also United States v. Rockwood, 52 MJ 98, 114 (1999)
(Gierke, J., concurring) (military judge should not have allowed voir
dire asking for sentencing commitment).
It is not surprising that the notion of "no
punishment" has bedeviled this Court for most of its history. A punishment
of no punishment appears to be an oxymoron, but it is a valid punishment.
In Ball v. United States, 470 U.S. 856, 861 (1985), the Supreme
Court observed that "Congress does not create criminal offenses having
no sentencing component." In United States v. Atkins, 8 USCMA 77,
23 CMR 301 (1957), Judge Latimer dissented from a holding that a board
of review had authority to affirm a sentence of "no punishment." Judge
Latimer opined that a sentence of no punishment was tantamount to a pardon,
which is a power reserved to the Executive branch, not the Judiciary. 8
USCMA at 80, 23 CMR at 304. In United States v. Jones, 14 USCMA
177, 33 CMR 389 (1963), this Court recognized that a court-martial was
empowered to adjudge a sentence of no punishment. A sentence to no punishment
does not automatically result if the members cannot agree on a sentence;
it must be agreed to by two-thirds of the members. United States v.
Goffe, 15 USCMA 112, 35 CMR 84 (1964). In the context of challenges
for cause, the majority opinion in United States v. McLaren, 38
MJ 112, 119 n.* (CMA 1993), includes the following observation:

I would have substantial misgivings about
holding that a military judge abused his discretion by refusing to excuse
a court member who could not in good conscience consider a sentence to
no punishment in a case where all parties agree that a sentence to no punishment
would have been well outside the range of reasonable and even remotely
probable sentences.

Turning to the facts of this case, we find no
clear abuse of discretion regarding the challenge of CSM Legoas. He, along
with the other members, expressed no predisposition to impose a punitive
discharge, confinement, or reduction in grade based on the nature of the
offense. In his spontaneous statement at the end of voir dire, CSM
Legoas distinguished between a punitive discharge and administrative separation,
leaving open the question which course of action was appropriate for appellant.
He expressed an inclination toward imposing some punishment but agreed
that he would follow the military judges instructions and would never
exclude the possibility of no punishment. Under this Courts holdings in
Tippit
and Jefferson, CSM Legoas was not disqualified, even if he was predisposed
to impose some punishment. Thus, we hold that the military judge did not
abuse his discretion in denying the challenge for cause against CSM Legoas.
Turning to the challenge of SFC Walder, we
also find no clear abuse of discretion. In his responses to general voir
dire, SFC Walder, along with the other members, agreed that a federal
conviction itself is punishment and that it has adverse collateral consequences.
He expressed willingness to follow the military judges instructions. Responding
to trial counsels questions, he said he would consider no punishment,
"depending on the evidence." Responding to defense counsels questions,
he said that he could consider no punishment, but "theres a thin line
that I cannot punish him at all." Upon further questioning, he said that
he could not give no punishment.
At the outset, we note that no one asked SFC
Walder what he considered to be "punishment." He had previously responded
during general voir dire that a conviction in itself was punishment.
CSM Legoas had raised the possibility of administrative separation during
general voir dire. We cannot ascertain from this record whether
SFC Walder thought that no punishment meant no conviction, no collateral
consequences of a conviction, or no administrative separation. Thus, we
have another case of responses to "artful, sometimes ambiguous inquiries"
that do not require the military judge to grant a challenge for cause.
United
States v. Bannwarth, 36 MJ 265, 267 (CMA 1993), quoting Tippit,
9 MJ at 108.
Furthermore, even if SFC Walder meant what
appellant asserts he meant, i.e., that he could not vote for a sentence
of no punishment under any circumstances, we would still find no clear
abuse of discretion under the specific facts of this case. Appellant pleaded
guilty after negotiating a pretrial agreement that permitted imposition
of a bad-conduct discharge and a short period of confinement. In his unsworn
statement, he expressed doubt about his worthiness to wear the uniform.
Finally, defense counsels closing argument asked for no discharge and
no confinement, but did not ask the members to impose no punishment. Under
these circumstances, the record reflects that all parties considered no
punishment to be "outside the range of reasonable and even remotely probable
sentences." United States v. McLaren, supra.
At first blush, the facts of this case appear
similar to those in United States v. Giles, 48 MJ 60 (1998). In
both cases, a key sentencing issue at trial was whether the accused should
receive a punitive discharge. In both cases, the challenged member demonstrated
an inelastic attitude about an aspect of sentencing. In Giles, the
challenged member had an inelastic attitude regarding a punitive discharge;
in this case, the challenged member indicated an inelastic attitude about
"no punishment," although, as indicated above, it is not clear what he
thought "no punishment" entailed.
However, there are critical differences between
this case and Giles. SFC Walder expressed no predisposition regarding
the real sentencing issues in this case: whether to impose a punitive discharge
and confinement. SFC Walders attitude regarding "no punishment" had no
bearing on the real sentencing issues, because the defense virtually conceded
in sentencing argument that "no punishment" was "outside the range of reasonable
and even remotely probable sentences."
In Giles, we held that the military
judge abused his discretion by denying the challenge for cause. However,
because of the above-described differences between this case and Giles,
we hold that the military judge did not abuse his discretion in this case.

Decision
The decision of the United States Army Court
of Criminal Appeals with respect to Issue I is affirmed. The decision is
set aside with respect to Issue II. The record of trial is returned to
the Judge Advocate General of the Army for remand to that court, which
will consider whether appellant is within the class of persons who are
entitled to relief under United States v. Gorski, supra.
If the court concludes that appellant is within such class, the court will
refer the record to the Judge Advocate General for a determination as to
the amount of relief that is warranted, if any.
FOOTNOTE:
* The current version
is unchanged.


SULLIVAN, Judge (concurring in part and in
the result):
I concur with the majority opinion, except
where it vainly attempts to square its opinion today with its opinion in
United
States v. Giles, 48 MJ 60 (1998). One looking at the facts of both
cases can see that the majoritys attempt to reconcile these two very similar
cases is flawed with the same semantics at issue in both cases  the phrasing
of artful, ambiguous questions. */
In Giles, the majority held that a member
had an inelastic attitude towards sentencing when,

[a]lthough he indicated that he could consider
the evidence and the circumstances of the case, [he] repeatedly stated
that he believed a bad-conduct discharge or a dishonorable discharge was
necessary for any servicemember who distributed drugs, and he had not heard
of or experienced any circumstances where a punitive discharge would not
be appropriate.

Id. at 63. In my dissenting opinion in
Giles,
I preferred to defer to the judgment of the military judge on that question,
as the majority of the court wisely does today. Id.
In the present case, during group voir dire,
SFC Walder, along with all the other panel members, did not state that
he felt an obligation to adjudge a punitive discharge, confinement, or
grade reduction because of the nature of the offense. Moreover, he expressed
an understanding that "with the judges instructions [he was] authorized
to adjudge no punishment." (R. at 50, 51). When asked the same question
on individual voir dire, SFC Walder gave the same answer.
(R. at 79). After twice repeating his position, SFC Walder succumbed to
the increasingly artful questioning by defense counsel and stated that
he would not give no punishment. (R. at 79-80, 80-81).
This is precisely the situation, i.e.,
inconsistent answers to repeated and increasingly complex questions by
both trial and defense counsel, that lends itself best to the judgment
of a trial judge who is present and observing the proceedings, rather than
a distant appellate tribunal. At the end of the day, whether such artful
questioning pertains to "real sentencing issues" (the majoritys term)
or not, does not change the wisdom of deferring to the determination of
the military judge. See United States v. Giles, 48 MJ 60,
63 (1998) (Sullivan, J., dissenting).
FOOTNOTE:
* More particularly,
I do not agree with the majoritys attempts to distinguish Giles
on the basis that the artful questioning in that case concerned "real sentencing
issues," but not in appellants case. This unsupported view of the law
was not adopted by a majority in United States v. McLaren, 38 MJ
112, 119 n.* (CMA 1993), and it suggests that a members answers to no-punishment
questions are usually irrelevant. I disagree (see RCM 1002, "a court-martial
may adjudge . . . a sentence of no punishment"), and would note that a
members intent to not follow the judges instructions and the law on a
permissible punishment is always a relevant concern. See United
States v. McGowan, 7 MJ 205, 206 (CMA 1979).

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