

   
   
   
   U.S. v. Ford



IN THE CASE OF
UNITED STATES, Appellee
v.
David R. FORD, Specialist
U.S. Army, Appellant
 
No. 98-0855
Crim. App. No. 9601467
 
United States Court of Appeals for the Armed
Forces
Argued April 7, 1999
Decided September 23, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and EFFRON, JJ., joined.
SULLIVAN, J., filed a concurring opinion.

Counsel
For Appellant: Captain Joshua E. Braunstein
(argued); Colonel John T. Phelps, II, Lieutenant Colonel Adele
H. Odegard, and Captain Kirsten V. Campbell-Brunson (on brief);
Captain Arden B. Levy.
For Appellee: Captain Mary E. Braisted
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief).
Military Judges: Gary J. Holland and Kenneth
D. Pangburn

THIS OPINION
IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of violating a lawful general
regulation by possessing an M22 TOW missile simulator, in violation of
Article 92, Uniform Code of Military Justice, 10 USC § 892. He also
convicted appellant, contrary to his pleas, of possessing an explosive
device in violation of a lawful general regulation, possessing an unregistered
firearm, and unlawfully making a firearm, in violation of Article 92, and
Article 134, UCMJ, 10 USC § 934.1
The adjudged and approved sentence provides for a bad-conduct discharge,
confinement for 120 days, total forfeitures, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed without opinion.
This Court granted review of the following
issues:

I

WHETHER THE GOVERNMENT FAILED TO PROVE BY
A PREPONDERANCE OF THE EVIDENCE THAT [SPECIALIST (SPC) FORD] DID NOT INVOKE
HIS RIGHT TO COUNSEL AFTER AN ILLEGAL INTERROGATION, AND WHETHER THE SUBSEQUENT
STATEMENT [SPC FORD] GAVE TO CID WAS TAINTED, AND THEREFORE INADMISSIBLE
BASED ON THE TOTALITY OF THE CIRCUMSTANCES, AND WAS PREJUDICIAL TO [SPC
FORD].

II

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
WHEN HE DENIED [SPC FORD]S REQUEST FOR A DEFENSE EXPERT ON EXPLOSIVES
DESPITE THE BIAS OF THE GOVERNMENT EXPERTS, AND THAT DENIAL PREJUDICED
[SPC FORD].

For the reasons set out below, we affirm.

Issue I: Invocation of Right to Counsel
Factual Background
On April 11, 1996, Special Agent (SA) Conner
was the on-call duty agent for the local field office of the Criminal Investigation
Command (CID). He was notified that a soldier had discharged a weapon in
a barracks room, and he went to the scene to investigate. While he was
investigating, he overheard "an MP" say that a bomb or explosive device
had been found in a different module of the barracks.
SA Conner went to the other module, where he
found a health and welfare inspection in progress. In a common area of
the barracks, he saw "some electrical cables, some books, an improvised
explosive device, pyrotechnics in a can, Gatorade bottle containing what
they thought was fertilizer." Captain (CPT) Abbott, the company commander,
told SA Conner that the items belonged to appellant. SA Conner asked appellant
for some personal data and asked him "if the stuff was dangerous, what
is it, how long he had it." SA Conner testified that appellant asked "what
his rights were," and he told appellant "that he didnt have to talk to"
him. According to SA Conner, "[w]e then mutually ceased the interview."
SA Conner testified that appellant did not "request an attorney" or "mention
a lawyer."
Staff Sergeant (SSGT) Gaddy was present during
the health and welfare inspection. He heard SA Conner questioning appellant.
When the CID agent stopped questioning appellant "for a few minutes," appellant
asked SSGT Gaddy if he "thought he needed an attorney present or should
he answer the questions." SSGT Gaddy told appellant that "it was up to
him, that [he] wasnt going to tell him what to do at the time." He testified
that appellant "went back over"; the CID agent "asked him a couple of more
questions," appellant "asked to have a lawyer present, or to talk to a
lawyer," and the CID agent stopped the questioning.
CPT Abbott testified that appellant was not
advised of his rights in the barracks, but that he inquired about his rights.
He did not remember appellant asking for an attorney.
Appellant did not testify concerning his conversation
with SA Connor in the barracks.
Appellant was transported from the barracks
to the CID office, where he was placed in an interview room. This room
was described as being about 8 feet by 10 feet with a one-way mirror on
one wall. SA Sinclair testified that he questioned appellant to obtain
essential identifying data. SA Sinclair did not warn appellant of his rights
at that time. At some point Sinclair learned that appellant was from Texas,
and used the fact that he was also from Texas to establish some rapport
with appellant. After SA Sinclair obtained some identifying information
from appellant, they conversed about Texas and appellants plans for the
future. Also, during that conversation, SA Sinclair asked appellant about
the Free Men and what appellant thought about the Bureau of Alcohol, Tobacco,
and Firearms. SA Sinclair estimated that this process took about 15-20
minutes. Appellant testified that he believed this interview lasted about
one hour.
SA Conner then entered the room and advised
appellant of his rights. SA Conner testified that this second interview
with appellant was about 45 minutes after the conversation at the company
barracks. There is no evidence that SA Conner advised appellant that the
information he had provided earlier could not be used against him, and
trial counsel conceded that no such "cleansing statement" was made. Appellant
waived his rights and made an inculpatory statement. Appellant told SA
Conner how he learned to make the devices, how he ordered parts, when he
made the item in question, and the length of time the item was in his locker.
During the interrogation, appellant said that
he had kept the items in his locker for a considerable time. Another agent
had found several receipts in appellants room and SA Connor believed that
they showed that appellant had purchased several of the items within the
preceding month or so. SA Conner accused appellant of lying about the date
of purchase. This led appellant to mention an attorney. SA Conner testified
as follows:



Q. [TC]: At any time during the questioning,
did you stop the questioning?
A. [SA Conner]: In what respect, sir?
Q. Did you stop questioning him for any reason
during the questioning?
A. There was one period where we had ceased
questioning [sic] of the interview.
Q. Why was that?
A. After the other agent came back from searching
[appellants] room, he had found some receipts from Radio Shack in Hinesville,
and on the receipts it appeared that the items were purchased in March
of this year. So, I questioned [appellant] about, you know, "I thought
youd been honest with me here so far," and he said "Yeah." I said, "Youve
had this stuff here for a long time," you know. "Here, we find receipts
that you were out there shopping last month," you know. "Whats the deal?"
So, we questioned that. It was later determined that, upon viewing the
original receipt, the receipt was dated 1995, not 1996. The photocopy had
made the "5" appear to be a "6."
Q. So, you thought he was lying to you?
A. Yes, sir. And it was during the course of
that conversation pertaining to the receipts that Specialist Ford had said
something like, "I dont want to talk to you anymore. Maybe I should get
a lawyer" or something. So I stopped asking the incriminating questions
and then I looked at him, and after I looked at him, I said, "Well, what
are we going to do? Are we going to continue the interview or do you want
to stop and get a lawyer?" He said, "Well, are you going to continue accusing
me of lying?", and I said, "Well, if youre talking about the receipts,
we have clarified this issue, that it was 1995 and not 1996, as I originally
thought," and "No, I do not still think youre lying about that receipt."
He said, "Well then, I guess Ill go ahead and continue to speak with you
about this."
Q. And did he do so?
A. Yes, sir, he did.



Appellants recollection of that portion of the
interview was somewhat different:



Q. [DC] When Agent Conner was asking you
questions, did he ask you questions of the same nature that he was asking
you up in the barracks?
A. [Appellant] I believe so. Some of them were.
I dont remember exactly how all things went on it, but a lot of the questions
were the same throughout.
Q. And then it switched to questions about
the Radio Shack and where you bought wires?
A. Yes, yes.
Q. Had he asked you that beforehand, in the
barracks?
A. I really dont remember. I remember him
asking me about where I came from and . . . I really dont remember those
questions being asked.
Q. When he started asking you about the Radio
Shack stuff, what happened?
A. He came in and started accusing me of lying,
after the other CID agent had brought the receipts to him. He started saying
that I was lying, that I had just bought the stuff, you know, and so I
was like, "Okay, Im tired of playing your games. I want a lawyer." Im
sure I said it several times, because he kept, you know, saying stuff,
and I said, "Well, I want a lawyer." And then he -- I dont know, something
went on and I said, "Let me see the receipts," and thats when he showed
me copies of the receipts. I said, "I want to see the originals," and thats
when he pulled out the originals and showed me the originals that had the
actual dates on it that you could read.
Q. What did they say?
A. They said March of '95 instead of March
of '96. He was trying to say that Id bought the stuff in March of -
Q. And then after you -- when you requested
a lawyer, did you say maybe you should or did you tell him that you definitely
wanted one?
A. No, I said, "I want a lawyer," and I said,
"Im tired of playing games. I want a lawyer."
Q. And then he looked at the Radio Shack receipt
and it proved you right. Who made the next step?
A. He asked me if I still wanted a lawyer,
and thats when I said, uh -- and he said something about he didnt like
being lied to, and I said, "Well, I dont like being called a liar. Ive
been trying to answer your questions as honestly as I can." He said, "Do
you still want a lawyer?" and I said, "Well, if youre not going to call
me a liar any more, you know, and do what youve been doing, then I will
answer your questions, but . . ."
Q. So when you first asked for a lawyer, he
didnt give you an opportunity to call one?
A: Exactly.



On cross-examination, trial counsel asked appellant
if he was "willing to go ahead and answer questions" after the issue about
the date on the receipts was resolved. Appellant responded:

Thats correct, because he said there was
going to be no more problems out of it and I said okay. Like I told him
earlier, that I -- he said that he didnt like being lied to and I said
that I didnt like being called a liar, because I had answered his questions
honestly. I said, "Are you going to be calling me a liar anymore on the
stuff that Im talking about here?" and he said, "No," and I said, "Well,
I guess I dont need a lawyer then."

Trial counsel asked, "So, you were willing at
that point to just keep answering questions, right?" Appellant responded,
"Yes."
At trial, the defense moved to suppress appellants
oral statements made in the barracks and the written statement executed
at the CID office. The military judge suppressed the oral statement made
in the barracks, but denied the defense motion to suppress the written
statement.
The military judge suppressed the barracks
statement by virtue of its unwarned character, but he determined that the
request for counsel was not made in the barracks, but rather, that appellant
only asked, "What are my rights?" The military judge also found that appellant
did not invoke his right to counsel at the CID office, but instead he made
an ambiguous reference to counsel. He also ruled that the first inadmissible
statement made in the barracks did not taint the second statement given
to the CID.
To support his ruling, the military judge made
the following findings:

I find that the accused did not make an unequivocal
request for an attorney. Second, that the accused did reopen dialogue with
the agents. He did express a willingness and a desire for further discussion
about the subject of the interrogation. Specifically, I find that the accused
made a statement to the effect, "If youre going to play games, I want
an attorney" or "If you call me a liar, I want an attorney," or words to
that effect; both of those, in my view, are not unequivocal, because they
are proceeded by that conditional "if."
I find, further, that the accused reinitiated
conversation with the Criminal Investigation Division [sic], stating something
to the effect -- and I reviewed the testimony of Special Agent Michael
Connor and Specialist Ford -- that, "As long as you are not calling me
a liar anymore, then I dont need an attorney," or something to the effect,
"Are you going to be calling me a liar anymore?" Response, "No," and "Then
I guess I dont need a lawyer." Also, a statement to the effect, "Are you
going to accuse me of lying anymore?"; response, "No," and "Then I dont
need a lawyer," or "If you are not going to call me a liar, then I will
answer your questions." In my view, those responses characterize what took
place and, thereby, the accused did reinitiate conversation.
I find that the accused was willing and did
desire further discussion about the subject, and he did voluntarily proceed
without an attorney.

Discussion
Appellant asserts that the Government failed
to prove by a preponderance of the evidence that his written confession
was voluntary. He argues that the military judges findings that he did
not invoke his right to counsel in the barracks and later at the CID office
were clearly erroneous. The Government asserts that appellant did not make
an unequivocal request for an attorney at any time.
If, as in this case, the defense objects to
admissibility of a confession, "the prosecution has the burden of establishing.
. . admissibility." Mil. R. Evid. 304(e), Manual for Courts-Martial, United
States (1995 edition).2
Before a confession may be admitted, "[t]he military judge must find by
a preponderance of the evidence" that the confession was voluntary. Mil.
R. Evid. 304(e)(1). A confession "that is challenged . . . as derivative
evidence may be admitted . . . if the military judge finds by a preponderance
of the evidence that the [derivative confession] was made voluntarily,
that the [confession] was not obtained by use of the [inadmissible evidence,]
or that the confession would have been obtained even if the [inadmissible
statement] had not been made." Mil. R. Evid. 304(e)(3); see United
States v. Murphy, 39 MJ 486, 488 (CMA) ("crucial issue . . . is not
whether the consent was a fruit of the inadmissible statement but rather,
. . . whether the later confession was voluntary"), cert. denied,
513 U.S. 1019 (1994).
In United States v. Phillips, 32 MJ
76 (1991), and United States v. Steward, 31 MJ 259 (1990), this
Court applied the Supreme Courts analysis in Oregon v. Elstad,
470 U.S. 298 (1985), to determine if a subsequent confession was tainted
by a previous unwarned confession. In Phillips, this Court explained:

Where a confession is obtained at a lawful
interrogation that comes after an earlier interrogation in which a confession
was obtained due to actual coercion, duress, or inducement, the
subsequent confession is presumptively tainted as a product of the earlier
one. On the other hand, where the earlier confession was "involuntary"
only because the suspect had not been properly warned of his panoply of
rights to silence and to counsel, the voluntariness of the second confession
is determined by the totality of the circumstances. The earlier, unwarned
statement is a factor in this total picture, but it does not presumptively
taint the subsequent confession.

32 MJ at 79.
An assessment of "the totality of all the surrounding
circumstances" includes "both the characteristics of the accused and the
details of the interrogation." Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973). The Supreme Court has described the test for actual coercion
as follows:

Is the confession the product of an essentially
free and unconstrained choice by its maker? If it is, if he has willed
to confess, it may be used against him. If it is not, if his will has been
overborne and his capacity for self-determination critically impaired,
the use of his confession offends due process.

Culombe v. Connecticut, 367 U.S. 568, 602
(1961) (opinion of Frankfurter, J.). In Elstad, the Supreme Court
stated: "A subsequent administration of Miranda [384 U.S. 436, 444
(1966)] warnings to a suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that precluded admission
of the earlier statement." 470 U.S. at 314, quoted in Murphy, 39
MJ at 488, and United States v. Young, 49 MJ 265, 267 (1998). Thus,
"[t]he necessary inquiry is whether the confession is the product of an
essentially free and unconstrained choice by its maker." United States
v. Bubonics, 45 MJ 93, 95 (1996). If there has been an earlier unwarned
statement, "the absence of a cleansing warning before the subsequent
statement" is one of the "circumstances to be considered in determining
voluntariness." United States v. Lichtenhan, 40 MJ 466, 470 (CMA
1994).
Interrogation of a suspect in custody must
cease if the suspect requests counsel. Mil. R. Evid. 305(f)(2). An ambiguous
comment or request, however, does not require that interrogation cease.
A request for counsel must be articulated "sufficiently clearly that a
reasonable police officer in the circumstances would understand the statement
to be a request for an attorney." If the mention of an attorney "fails
to meet the requisite level of clarity," questioning may continue. "If
the suspects statement is not an unambiguous or unequivocal request for
counsel, the officers have no obligation to stop questioning him." Davis
v. United States, 512 U.S. 452, 459, 461-62 (1994).
The Supreme Court has recognized that "it will
often be good police practice for the interviewing officers to clarify
whether or not [a suspect] actually wants an attorney." Davis, supra
at 461. "There is no blanket prohibition against a comment or a statement
by a police officer after an invocation of rights." Young, 49 MJ
at 267.
The military judges determination that a confession
is voluntary is a question of law, requiring independent, i.e.,
de novo, review. Arizona v. Fulminante, 499 U.S. 279,
287, 111 S.Ct. 1246, 1252 (1991); Bubonics, supra at 94.
When a military judge makes special findings of fact, they are the basis
for our review of the question of voluntariness, unless clearly erroneous.
United States v. Cottrill, 45 MJ 485, 488 (1997).
Applying the foregoing principles, we hold
that appellants written confession was voluntary and admissible. Because
appellant did not testify about the barracks interview, the military judge
had only the testimony of SSgt Gaddy, who testified that appellant asked
for a lawyer; SA Conner, who testified that appellant did not "mention
a lawyer"; and CPT Abbott, who testified that he did not remember appellant
asking for a lawyer. The military judge found that appellant did not ask
for a lawyer during the barracks interview. The testimony of SA Conner
and CPT Abbott was sufficient to meet the requirement for proof by a preponderance
of the evidence. Because the military judges finding was not clearly erroneous,
it is the factual basis for our review of voluntariness. Based on the military
judges finding that appellant did not request a lawyer during the barracks
interview, we need not address the question whether SA Connor improperly
reinitiated interrogation at the CID office after appellant invoked his
right to counsel in the barracks.
Two issues remain: (1) was appellants confession
at the CID office voluntary in spite of the unwarned questioning in the
barracks; and (2) did appellant invoke his right to counsel at the CID
office? We answer the first question in the affirmative and the second
in the negative.
Based on the totality of the circumstances,
we hold that appellants written confession was voluntary. The barracks
interview, although unwarned, was not the product of coercion. It was conducted
in an open area of the barracks, with other unit personnel moving around.
SA Conner questioned appellant in a casual environment while talking to
others, including CPT Abbott, at the same time. Although appellant was
not free to leave the area, he was free to move around and talk to others,
as evidenced by his conversation with SSgt Gaddy. SA Conner terminated
the conversation when appellant asked about his rights.
Appellant conceded at trial that he was properly
warned of his rights at the CID office. While being interrogated in the
"station house" is somewhat coercive in itself, there is no evidence that
appellant was deprived of food, water, or other personal comforts. He was
not questioned at great length to wear him down physically. While no "cleansing
warning" was given, appellant appeared to understand his rights and freely
waived them. When he became irritated at SA Connor, he threatened to invoke
them. Finally, there was no reference to the earlier unwarned statements
at the barracks. Thus, after examining the totality of the circumstances,
we hold that the written confession was voluntary.
The only contested issue regarding appellants
written confession was whether he invoked his right to counsel. SA Connor
testified that after he accused appellant of lying about the date on which
he purchased the materials found in his locker, appellant said, "Maybe
I should get a lawyer," or something similar. SA Conner testified that
he stopped the interrogation, waited a few minutes, and asked, "Are we
going to continue the interview or do you want to stop and get a lawyer?"
On the other hand, appellant testified he said,
"I want a lawyer." Appellant admitted, however, that when SA Connor examined
the receipt and admitted that he had been mistaken, appellant told him
that he would continue answering questions without a lawyer if SA Conner
would stop calling him a liar. Appellant testified that he responded to
SA Conners question, "Do you still want a lawyer?" by stating, "Well,
if youre not going to call me a liar anymore . . . then I will answer
your questions." The context of the conversation, understood by both SA
Conner and appellant, was that appellant would not talk to SA Conner if
he persisted in calling him a liar, but that appellant was willing to talk
if SA Conner acknowledged that he had been mistaken about the date on the
receipt and stopped calling him a liar. Under the circumstances, we hold
that appellants invocation was ambiguous, conditioned on not being called
a liar. It was not articulated "sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be
a request for an attorney." Accordingly, we hold that SA Connor was not
required to terminate the interview and thus the written confession was
admissible.

Issue II: Expert Assistance
Factual Background
The defense theory was that the device seized
from appellants locker was not a "firearm," as defined by 26 USC §
5845(a)(8) and (f). The statutory definition of "firearm" includes any
"destructive device." The defense argued that the device was not a "destructive
device" but merely a firecracker designed for entertainment. On the other
hand, the prosecution theory was that the device was a "bomb."
During a session under RCM 802, Manual, supra,
defense counsel informed the military judge that he had interviewed Anthony
May, a government explosives expert employed by the Bureau of Alcohol,
Tobacco, and Firearms (ATF). Defense counsel was not satisfied at that
time that Mr. May could answer all his questions. When it appeared that
defense counsels questions pertained more to chemistry than explosives,
the Government informed the military judge that it intended to make its
forensic chemist, David Flohr, available to the defense. Conceding that
Mr. Flohr might be able to answer his questions, defense counsel received
permission from the military judge to reserve his request until the Government
completed its case-in-chief.
During the Governments case-in-chief, Mr.
Flohr identified a bottle, seized from appellants locker (Prosecution
Exhibit 7), and testified that it contained a mixture of Pyrodex gunpowder,
the "first fire" mixture from an M127A1 illuminator, and "flattened ball,
double based smokeless [gun]powder," consistent with the powder from M-16
rifle cartridges. On cross-examination, Mr. Flohr testified that the Pyrodex
mixture was "safe to send through the mail."
Mr. Flohr also identified a device seized from
appellants locker (Prosecution Exhibit 5) which was disassembled in the
laboratory. The device included a flashbulb with the glass removed, red
and black wires, and a tube that appeared to be a toilet paper cardboard
tube wrapped in multiple layers of silver duct tape, with a metal liner
made from an iced tea can. Mr. Flohr testified that the tube contained
a condom filled with a substance containing urea and ammonium sulfate,
and approximately 18.7 grams of Pyrodex gunpowder. The tube also contained
a plug at one end made from "Play-Doh," and plugs made from snuff cans
and hot glue.
On cross-examination, Mr. Flohr testified that
the flashlight bulbs tungsten filament was missing and he was unable to
find it. He testified that ammonium sulfate will smoke but will not "sustain
combustion."
On examination by the military judge, Mr. Flohr
testified that he conducted an experiment with a small quantity of the
Pyrodex gunpower taken from the device, igniting it by removing the glass
from a flashlight bulb similar to the one found in appellants locker,
and illuminating the filament to ignite the powder. In the experiment,
the powder ignited and produced a bright flash. Mr. Flohr testified that
if the 18.7 grams of powder from appellants device were ignited, he "would
expect a very brilliant flash." If it were ignited in the tube, "it would
produce a loud report and then throw the disks and the hot glue, and it
would eject those."
Mr. May testified that he began working for
ATF on September 8, 1995, upon his retirement from the Army, where he served
as an explosive ordnance disposal technician for 15 years. After cross-examining
Mr. May extensively about his training and experience, defense counsel
accepted him as an expert witness.
Mr. May testified that if the device seized
from appellant were ignited, it "would explode causing the container to
violently burst, projecting metal fragments." He testified that, "although
this device is not like a grenade, it would have the similar effects that
a grenade would have. It would produce fragments that are basically anti-personnel
in nature." He testified that the device has "no social or industrial applications"
and that it, "as constructed, could be used as a weapon." He based his
opinion on the fact that the tube contained "a metal sleeve" that "would
produce fragmentation." Asked why fertilizer would be placed in a device,
Mr. May testified that ammonium nitrate is "an explosive mixture," but
ammonium sulfate, the substance seized from appellant, is not "an explosive
mixture."
Mr. May was asked if he would classify the
device as "just a big firecracker." He responded that he would not, because
of the metal sleeve.
On cross-examination, Mr. May stated that it
was the metal sleeve that made the device a "destructive device" instead
of an illegal explosive device. He agreed that the metal from the iced
tea can, which was only one-tenth of a millimeter thick, was "light shrapnel."
Defense counsel followed with an extensive
cross-examination based on the question, "what have you worked with containing
metal that would have less of an explosive and destructive effect that
this thing right here," referring to appellants device. Eventually, Mr.
May testified that appellants device was somewhere in the middle of explosive
and destructive power, between a pipe bomb and an M-80 firecracker. He
qualified his answer, saying, "I can truly say I have not worked with a
device that was made out of a soda can with powder in it."
Defense counsel continued to explore the question
of the destructive power of appellants device in the following cross-examination:



Q. So, everything else that you worked with,
with metal, would you say had thicker metal or more metal?
A. Im thinking . . . Im trying to give you
a truthful answer here. Most of the devices that I look at have thicker
metal. Yes.
Q. And do most of the devices you look at have
more powder when they contain metal?
A. Well, youre trying to compare improvised
explosive devices. But again theres no mil specs on them. Its left up
to the imagination of the builder. Have I worked with devices with more
powder? Yes. Have I worked with devices with less powder? Yes.
DC. Your Honor, is there any other way I could
ask the question?
MJ. I think hes answered the question.
DC. Okay. I think were there.

* * *
Q. And by saying that, youre saying the metal
can distinguishes it from mere firecracker status?
A. Well, the quantity of powder distinguishes
[it] from a legal firecracker to an illegal device. The container, the
metal container, distinguishes it from an illegal device, a destructive
device, an anti-personnel weapon.
Q. Now, is it possible that if this device
were detonated, that one or both of the lids would pop off?
A. With no shrapnel?
Q. With no shrapnel effect.
A. Ill have to answer that question separately.
Yes, its possible. But, yes, there will be shrapnel effects because youve
got that thin, metal snuff can thats going to come flying out. Youre
going to have shrapnel. Well, actually, sir, youre going to have frag.
The definition of shrapnel is something - as a metal container will fragment.
But if I take BBs or nails taped to the outside of this, Im adding shrapnel.
Q. So, the fragments that you would have, under
the best case scenario, being the least damaging, is frags, which would
consist of the metal disks on the ends, one or both, flying off with no
other effect?
A. I would not say best case scenario. I would
say it is probable, or possible, that this device functioning, yes, it
could blow out, yes, a metal disk will fly. Its also probable, more probable,
that the container, the whole container itself, would rupture.
Q. Why is that?
A. The hot glue will cause a seal and once
the powder starts burning its gonna go to an explosion and that container
is going to come apart. The whole container itself is going to fly, creating
a fragmentation effect in itself.
Q. But the fact that its taped up on the sides
wouldnt help to prevent shrapnel?
A. Oh, no, sir.

* * *
Q. Would a type of seal on the device have
anything to do with that, how well it was sealed?
A. For having to do with what, sir?
Q. Would that affect the explosion?
A. If you had - the better the seal, the greater
the pressure increase; the greater the pressure increase, the better the
explosion.
Q. So, if it were old or mishandled, its possible
that we would have a lesser seal and, therefore, a lesser explosion?
A. If youve got a leak in your seal, you could
have - you still would have an explosion. So, as I said, you can take
powder and I can pile the Pyrodex up on that typewriter table without any
other confinement other than the pile itself and I can get that to explode.
Youre still going to have an explosion.
Q. But you really cant tell exactly how much
of an explosion 
A. Oh, no, sir ----
Q. ---- based upon what we got ----
A. No, sir. I can tell you the probable effects
based on my experience. But I cant tell you as an exact science. No, sir.



At the conclusion of the Governments case, defense
counsel renewed his request for expert assistance. Defense counsel asserted
that Mr. May was unable to adequately assist the defense because he works
for ATF, had worked for ATF for only a short time, is still a probationary
employee, and was uncooperative on cross-examination, i.e., "he
just wouldnt grasp it [the last series of questions] and acknowledge the
issues" that defense counsel wanted to raise. The following dialogue then
ensued:



DC: . . . What the defense requests is a
witness who would work with the defense to help us decide whether or not
any expert could tell, based upon the set of facts as exemplified by Prosecution
Exhibit 5 [the materials seized from appellants locker], whether or not
any expert could make an opinion as to the volatility of the device.
MJ: Volatility being what?
DC: What would happen if it exploded. He first
said it would definitely throw shrapnel and then he called them "frags"
and then he said its possible that it might not throw frags. What I want
to do is find and talk to a defense expert who would say, based upon Prosecution
Exhibit 5 as it sits here, no member of the ATF, particularly a post-blast
analyst, can look at this device and tell what it could have done if it
were assembled properly -- depending on the age of the thing, how its
been handled, volatility, leaking, things like that.
MJ: I dont think that youve made an adequate
showing that you need an expert. There doesnt seem to be any real dispute
that the materials that were included in there were explosive materials
and, if ignited, that they could propel whatever materials were in there,
metal materials or what have you. That is what Mr. May testified to. I
dont believe youve made an adequate showing that any consultation with
another expert would be beneficial to you on the points for which you offered
it.
Your request is denied.



Discussion
RCM 703(d) authorizes employment of experts
to assist the defense at government expense when their testimony would
be "relevant and necessary," if the Government cannot or will not "provide
an adequate substitute." This Court has observed that "upon a proper showing
of necessity, an accused is entitled to" expert assistance. United States
v. Burnette, 29 MJ 473, 475, cert. denied, 498 U.S. 821 (1990).
This Court has adopted a three-pronged test for determining whether expert
assistance is necessary:

First, why the expert assistance is needed.
Second, what would the expert assistance accomplish for the accused. Third,
why is the defense counsel unable to gather and present the evidence that
the expert assistant would be able to develop.

United States v. Gonzalez, 39 MJ 459, 461,
cert. denied, 513 U.S. 965 (1994).
We review the military judges decision on
a request for expert assistance for abuse of discretion. See United
States v. Washington, 46 MJ 477, 480 (1997), citing United States
v. Garries, 22 MJ 288, 291 (CMA), cert. denied, 479 U.S. 985
(1986), cert. denied in Washington, 522 U.S. 1051 (1998).
Applying the above Gonzalez test, we
hold that the military judge did not abuse his discretion. The Government
made a forensic chemist and an explosives expert available, and the record
reflects that both were interviewed by the defense before the Government
presented its case on the merits. Although the defense complained the Mr.
May was a probationary employee of ATF with less than one years experience,
Mr. May also had 15 years of experience as an Army explosive ordnance disposal
technician, and defense counsel conceded at trial that he was an expert.
Defense counsels complaint about Mr. Mays
answers on cross-examination arose from Mr. Mays unwillingness to agree
that the device in question was "just a big firecracker." Mr. May adamantly
insisted that, even if the metal liner did not rupture, the metal end caps
would still produce a fragmentation effect. Defense counsel asked for an
expert to "help us decide whether or not any expert" could express an opinion
contrary to Mr. Mays.
Appellants request satisfies the first Gonzalez
prong. He needed an expert to testify that the device was "just a big firecracker"
and not a "destructive device." More specifically, the defense wanted an
expert to contradict Mr. Mays testimony that the device would produce
a fragmentation effect if detonated.
Whether appellants request satisfies the second
Gonzalez prong is a closer question. He wanted an expert to help
him find an expert. In essence, he was asking the Government to find him
an expert who could tell him whether the Governments expert could be contradicted.
We need not decide, however, whether the second prong is satisfied, because
appellants request fails the third Gonzalez prong. The record does
not show any efforts on the part of the defense to determine if an expert
existed who could contradict Mr. May. There is nothing in the record indicating
whether defense counsel had done any independent research or had any specific
basis for questioning the responses given by the government expert. See
generally United States v. Short, 50 MJ 370, 373 (1999) (defense
counsel expected to do "homework").

Decision
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 The offenses of
possessing an unregistered firearm and making a firearm were alleged to
be violations of 26 USC § 5861(d) and 26 USC § 5861(f), respectively,
and were charged as violations of clause 3 of Article 134, which assimilates
all "crimes and offenses not capital" into Article 134.
2
All Manual provisions are cited to the version applicable at trial. The
1998 version is unchanged, unless otherwise indicated.
 
 
SULLIVAN, Judge (concurring):
I write only to say that I still believe United
States v. Short, 50 MJ 370 (1999), was wrongly decided. There, the
Government at trial conceded that an expert was necessary and proffered
a "conflicted" one. Id. at 378-79 (Effron and Sullivan, JJ., dissenting).
No such concession exists in this case, and I agree with the majority that
appellant did not establish the third prong of necessity under United
States v. Gonzales, 39 MJ 459, 461 (CMA), cert. denied, 513
U.S. 965 (1994).

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