                              IN THE CASE OF


                         UNITED STATES, Appellee

                                     v.

                  Wayne G. AUGSPURGER, Airman Basic
                      U.S. Air Force, Appellant

                                No. 04-0563

                          Crim. App. No. S30222

       United States Court of Appeals for the Armed Forces

                         Argued February 8, 2005

                          Decided June 27, 2005

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

                                   Counsel

For Appellant: Major Andrew S. Williams (argued); Lieutenant
Colonel Carlos L. McDade and Major Terry L. McElyea (on brief).

For Appellee: Major Michelle M. Lindo (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert V. Combs, Lieutenant Colonel
Gary F. Spencer, Major James K. Floyd, and Major M. Leeann
Summer (on brief).

Military Judge:     Ann D. Shane


  This opinion is subject to revision before final publication .
United States v. Augspurger, No. 04-0563/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman Basic (AB) Wayne G. Augspurger was charged with

wrongfully using marijuana “on divers occasions,” wrongfully

distributing marijuana, being drunk and disorderly and

wrongfully communicating a threat in violation of Articles 112a

and 134 of the Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 912a, 934 (2000), respectively.   He pleaded guilty to

the drunk and disorderly specification and not guilty to the

remaining specifications.   The members found him not guilty of

wrongfully distributing marijuana and wrongfully communicating a

threat.   He was found guilty of wrongfully using marijuana,

except for the words “on divers occasions.”   Augspurger was

sentenced to confinement for three months and a bad-conduct

discharge.   The convening authority approved the sentence and

the Air Force Court of Criminal Appeals affirmed the findings

and sentence by unpublished order on May 18, 2004.   United

States v. Augspurger, No. ACM S30222, 2004 CCA LEXIS 128, 2004

WL 1238970 (A.F. Ct. Crim. App. May 18, 2004).

     When a servicemember is charged with illegal conduct “on

divers occasions” and the members find the accused guilty of

charged conduct but strike out the “on divers occasions”

language, the effect of the findings is that the accused has

been found guilty of misconduct on a single occasion and not

guilty of the remaining occasions.   Where the findings do not



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United States v. Augspurger, No. 04-0563/AF

disclose the single occasion on which the conviction is based,

the Court of Criminal Appeals cannot conduct a factual

sufficiency review or affirm the findings because it cannot

determine which occasion the servicemember was convicted of and

which occasion the servicemember was acquitted of.   We granted

review in this case to determine whether the Air Force court

erred in reviewing the findings for factual sufficiency and

independently determining which act of marijuana use Augspurger

was convicted of.   We hold that the Air Force Court of Criminal

Appeals erred.   That court could not conduct a factual

sufficiency review of Augspurger’s conviction because the

military judge failed to clarify the factual bases upon which

the members’ findings of guilty and not guilty were based.

                             BACKGROUND

     At Augspurger’s court-martial the Government presented

evidence of three separate occasions during which Augspurger

allegedly used marijuana.   The allegation of one occasion of use

was based on a positive urinalysis result after Augspurger’s

urine was tested for marijuana when he submitted a sample for a

medical test.    Following this positive test Augspurger admitted

to an investigator that he had smoked marijuana at an off-base

apartment with some friends on December 1, 2001.   Allegations of

two additional uses of marijuana were presented through the

testimony of AB Todd A. Coleman who previously had been



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United States v. Augspurger, No. 04-0563/AF

convicted of drug use and who testified that he had seen

Augspurger smoke marijuana on two separate occasions in January

and February 2002.

     The “use” specification alleged that Augspurger had used

marijuana “on divers occasions” between October 15, 2001 and

February 20, 2002.   After hearing evidence of the three alleged

occasions of use described above, the members found him guilty

of the specification except the words “on divers occasions,” and

found him not guilty of the excepted words.   The members did not

indicate which of the three alleged uses formed the basis of

their finding.

     Confusion over which occurrence Augspurger had been

convicted of was evident following the announcement of the

verdict.   In a session pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839 (a) (2000), the defense counsel asked the military

judge to have the members clarify the findings.   The military

judge declined to do so but did discuss her concern over how she

should instruct the members regarding Augspurger’s prior

nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815

(2000), for the drug use described in his confession.   She noted

that “at this point, we don’t even know if that’s one of the

specifications.”   The military judge ultimately decided to

conditionally instruct the members that they could consider the

Article 15 punishment as evidence in mitigation if they had



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United States v. Augspurger, No. 04-0563/AF

convicted him for the same drug use.    The trial counsel objected

to that instruction noting that “[t]here is no way of knowing

what the members actually convicted him on or which particular

use.”

        Without knowing which use Augspurger had been convicted of,

neither the parties nor the military judge knew whether the

Article 15 punishment should be admitted as a matter in

mitigation or a matter in aggravation.    If Augspurger was

convicted of the same “use” for which he received the Article 15

punishment, the members needed to be instructed to take into

consideration as a matter in mitigation that he had already been

punished for that offense.    On the other hand, if Augspurger was

convicted of use on one of the other two occasions, the

Government could introduce the Article 15 punishment in

aggravation as evidence of a separate use.

        In the sentencing arguments the trial counsel referred to

the Article 15 punishment as a matter in aggravation, taking the

position that Augspurger had been acquitted of the marijuana use

that was referenced in his confession and that was the basis for

the Article 15 punishment.    The defense counsel referred to it

as a matter in mitigation, taking the position that Augspurger

had been convicted of the marijuana use that was referenced in

his confession.    The military judge instructed the members as

follows:



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United States v. Augspurger, No. 04-0563/AF

           In regard to Specification 2 of the Charge, the court
           found the accused guilty of a single use of marijuana.
           If the basis for that finding was the incident
           described in the accused’s confession, Prosecution
           Exhibit 3, then the court is advised that when you
           decide upon a sentence in this case, you must consider
           that punishment has already been imposed upon the
           accused under Article 15, UCMJ, for that offense.
           Specifically, he was reduced in rank. His prior
           punishment is a matter in mitigation which you must
           consider. Again, this only applies if, in fact, the
           court’s finding of guilt was based upon the incident
           contained in Prosecution Exhibit 3.

In giving this instruction the military judge demonstrated that

she did not know which use the members found Augspurger guilty

of.

      Before the Air Force court Augspurger argued “that the

finding of guilty as to use of marijuana was ambiguous in that

it failed to specify which of the three alleged divers uses

formed the basis of the conviction.”   Augspurger, 2004 CCA LEXIS

128, at *1-*2, 2004 WL 1238970, at *1.   That court concluded

that the military judge erred in not requiring the members to

specify which of the three instances presented by the Government

formed the basis of their finding; however it found that it was

able to “determine in this case which of the three alleged uses

the appellant was convicted of, and thus we conclude the error

was harmless beyond a reasonable doubt.”   Augspurger, 2004 CCA

LEXIS 128, at *4, 2004 WL 123870, at *2.   After reviewing the

evidence the court satisfied itself beyond a reasonable doubt

that the members convicted Augspurger of the December 1, 2001



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United States v. Augspurger, No. 04-0563/AF

use, and modified the findings in an effort to resolve the

ambiguity.   Id.

     Before this court, Augspurger argues that the military

judge erred because she did not ask the members to clarify their

verdict before it was announced.       He argues that the Court of

Criminal Appeals also erred because it nonetheless affirmed

Augspurger’s conviction and stated that it could determine which

instance of use the members relied on by exercising its fact-

finding powers under Article 66, UCMJ, 10 U.S.C. § 866 (2000).

He contends that our opinions in United States v. Walters, 58

M.J. 391 (C.A.A.F. 2003), and United States v. Seider, 60 M.J.

36 (C.A.A.F. 2004), necessitate reversal of his conviction based

on these errors.

     The Government argues that there is sufficient evidence in

the record to ascertain which use of marijuana formed the basis

for Augspurger’s conviction, and that the lower court properly

asserted its fact-finding authority in reaching its conclusion.

It contends that it is a separate inquiry for the court to

determine beyond a reasonable doubt which incident the fact-

finder used as a basis to convict the accused.      The Government

argues that so long as a lower court reasonably could have

determined the fact-finder’s intent from the record beyond a

reasonable doubt, then that court could thereafter conduct a

factual sufficiency review of that finding.      The Government



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United States v. Augspurger, No. 04-0563/AF

urges this court to uphold those determinations as a proper

application of the lower court’s Article 66 fact-finding power.

The Government also argues that even if the lower court did not

have the power to review these findings, this court has the

power to order a post-trial proceeding in revision to clarify

the findings and should do so in lieu of outright dismissal.

                             DISCUSSION

     In Walters, the defendant was charged with drug use “on

divers occasions” and the Government presented evidence of a

number of instances of drug use.       58 M.J. at 392-93.   The

members found the defendant guilty of only a single use, and not

guilty of use “on divers occasions.”      Id. at 393.   This court

held that it was error for the military judge to fail to obtain

clarification of the members’ findings prior to announcement of

those findings.   Id. at 396-97.   We also found that the

ambiguity in the findings precluded review by the Court of

Criminal Appeals because “[a] Court of Criminal Appeals cannot

find as fact any allegation in a specification for which the

fact-finder below has found the accused not guilty.”        Id. at

395, 397.

     Subsequently, we decided Seider, which differed from

Walters in that there were only two instances of drug use

alleged by the Government.   Again the members excepted the words

“on divers occasions” and found the defendant guilty of use on



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United States v. Augspurger, No. 04-0563/AF

only one occasion.    60 M.J. at 37.   The Court of Criminal

Appeals in Seider reviewed the two alleged instances for legal

and factual sufficiency and found that it was “convinced beyond

a reasonable doubt that 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.”    United

States v. Seider, No. ACM 35154 2003, CCA LEXIS 197, at *2, 2003

WL 22048406, at *1 (A.F. Ct. Crim. App. Aug. 11, 2003).

     In reviewing the lower court’s decision, this court found

that it was not possible to determine the factual basis for the

members’ findings, and concluded that “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.”   60 M.J. at 38.   We noted that:

                 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.

Id. at 38 n.*.

     This case is not distinguishable from the rationale of

Walters and Seider.     As in those cases, there is simply no


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United States v. Augspurger, No. 04-0563/AF

indication by the members as to the factual basis for their

findings of guilty and not guilty.   In fact, the inability to

determine the basis for the findings is reflected in this

record.   After the findings were announced, each party held a

different view of the basis for the findings.   The military

judge was also uncertain as reflected by her conditional

instruction on how the members were to consider the Article 15

punishment.   Accordingly, we hold that the Court of Criminal

Appeals did not have the authority to review and affirm

Augspurger’s conviction by selecting the occasion that formed

the basis for the conviction and then reviewing that conclusion

for factual sufficiency.

     The military judge had two opportunities to ensure that the

members’ findings, as announced, were clear as to the factual

basis for the offense.   First, she should have properly

instructed the members that if they excepted the “divers

occasion” language they would need to make clear which

allegation was the basis for their guilty finding.   Second,

after she examined the findings worksheet but prior to

announcement, the military judge should have asked the members

to clarify their findings.   Once the findings of a court-martial

have been announced, any finding that amounts to a finding of

not guilty is not subject to reconsideration or a post-trial




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United States v. Augspurger, No. 04-0563/AF

session such as a proceeding in revision.   See Rule for Courts-

Martial 924(a), 1102(c)(1).

     It is the responsibility of military judges to ensure that

these ambiguities are clarified before the findings are

announced and if they fail to do so the appellate courts cannot

rectify that error.   See Walters, 58 M.J. at 397 (noting that

“the inability to identify and segregate those instances of

alleged use of which Appellant was acquitted from the ‘one

occasion’ that served as the basis for the guilty finding

effectively prevents any rehearing”).

                              DECISION

     The decision of the Air Force Court of Criminal Appeals is

reversed.    The finding of guilty of Specification 2 of the

Charge and the sentence are set aside, and Specification 2 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.




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United States v. Augspurger, No. 04-0563/AF


     CRAWFORD, Judge (dissenting in part and concurring in the

result):

     I respectfully dissent from the majority’s application of

United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), to the

facts of this case.   I concur, however, in the result because

this case can and should be decided on the basis of judicial

estoppel.   If it were not for the prosecutor’s argument at trial

that the members’ findings pertained not to Appellant’s December

2001 use of marijuana but rather to his use on another occasion,

this case could be affirmed, because the facts are easily

distinguishable from those of Walters.

     In the military justice system, administrative and

nonjudicial action may be taken against a servicemember for a

violation of the Uniform Code of Military Justice (UCMJ), with

regard to, such as in this case, the wrongful use of a

controlled substance.   Administrative punishment may be imposed

under the provisions of Article 15, UCMJ, 10 U.S.C. § 815

(2000).    In this case, Appellant was given punishment under

Article 15 for the wrongful use of a controlled substance in

December 2001.   While we have held that the prior punishment

does not constitute double jeopardy and preclude a court-

martial, we have also held that “an accused must be given

complete credit for any and all non-judicial punishment.”

United States v. Pierce, 27 M.J. 367, 369 (C.M.A. 1989).
United States v. Augspurger, No. 04-0563/AF


Because of the potential overlap, the military judge informed

the parties that she planned to instruct the members that

Appellant was entitled to credit for the Article 15 punishment

because the underlying facts for the finding of guilty and the

Article 15 punishment may have been the same.   The prosecutor

objected to this instruction.

     Judicial estoppel precludes a party from successfully

asserting a position in a proceeding and then asserting an

inconsistent position later.    See Lowery v. Stovall, 92 F.3d

219, 223 (4th Cir. 1996) (approving courts’ use of the doctrine

to preclude such changes in position); United States v.

McCaskey, 9 F.3d 368, 378 (5th Cir. 1993) (identifying one of

the policies underlying judicial estoppel doctrine as

“preventing internal inconsistency”).   It is an effective tool

for discouraging or preventing the prosecutorial inconsistency

that occurred in this case.    Judicial estoppel would bar the

prosecution in this case from advocating at this Court a

position inconsistent with that of the trial prosecutor, who had

a chance to hear all the evidence and observe the demeanor of

the members and the witnesses.

     As noted above, the prosecutor’s argument in this case

renders futile any attempt to distinguish the cases cited by

Appellant, although they are otherwise distinguishable.    In

Walters, the accused was charged with using ecstasy on divers


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United States v. Augspurger, No. 04-0563/AF


occasions.    58 M.J. 392.   Walters pleaded not guilty and the

Government presented credible evidence of as many as six

instances of drug use.    The members found Walters guilty of one

single use of ecstasy by excepting the words, “on divers

occasions,” but they did not specify which of the six instances

formed the basis for their finding.    Id. at 392-94.   In contrast

here, while Appellant was charged with using marijuana on divers

occasions, the evidence introduced by the Government at trial,

which included a positive urinalysis and Appellant’s confession

to marijuana use in December, clearly formed the basis for the

members’ finding.    Although two witnesses testified as to other

alleged uses, this case is factually distinguishable from

Walters.     Appellant confessed and, while trial counsel moved to

suppress Appellant’s confession once it was admitted, the

confession was not discredited.    In both defense counsel’s

opening statement and closing argument on the findings, he

practically invited the members to find Appellant guilty of the

instance reflected in the confession.    In his opening statement,

he said:   “[T]here’s evidence of one single use, but there’s not

evidence of divers uses on different occasions.”    In his

findings argument, he told the members that Appellant “admits

that he wrongfully used marijuana in his 1 December statement.

That’s not in dispute.    In fact, his statement is corroborated

by the fact that his drug screen came back positive for


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United States v. Augspurger, No. 04-0563/AF


marijuana when he checked into the hospital.”    The defense did

not try to cross-examine Government witnesses as to this

evidence or contradict Appellant’s confession.

     The prosecutor, in his misguided zeal, tried to prevent the

panel from giving Appellant any credit for the prior Article 15

punishment relating to the same use that defense counsel

mentioned in his opening and closing statements.   The prosecutor

wanted the Article 15 punishment to be considered a matter in

aggravation that would not serve to reduce the sentence.     In

this instance, I would apply the logic of Military Rule of

Evidence (M.R.E.) 801(d)(2)(C), (D) to resolve the question of

whether the prosecutor’s statement at trial as to his beliefs is

binding on the Government.   At least, the argument to the

military judge shows there is more than one incident that may

have been subject to the Article 15 punishment, thus raising the

issue of whether the Court of Criminal Appeals could affirm the

conviction for one of the several incidents set forth in the

Government’s case.   United States v. Salerno, 937 F.2d 797, 811-

12 (2d Cir. 1991); see also United States v. Bakshinian, 65 F.

Supp. 2d 1104, 1106 (C.D. Cal. 1999) (requiring the state to

abide by promises made by prosecutors).   The statements of the

prosecutor bind the Government, or at least result in judicial

estoppel.   See, e.g., United States v. Kattar, 840 F.2d 118,

130-31 (1st Cir. 1988); see also United States v. Johnson, 28


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United States v. Augspurger, No. 04-0563/AF


F.3d 1487, 1496 (8th Cir. 1994) (stating that the Government’s

original bill of particulars would have been admissible if

inconsistent with the charge later before the court).

     M.R.E. 801(d)(2) is the same as its counterpart in the

Federal Rules of Evidence with regard to party admissions,

including adopted statements, statements by authorized agents,

and those made by principals.   M.R.E. 801(d)(2) provides that

certain statements are not hearsay.   Those statements include

“(C) a statement by a person authorized by the party to make a

statement concerning the subject, or (D) a statement by the

party’s agent . . . concerning a matter within the scope of the

agency or employment of the agent . . .   made during the

existence of the relationship.”   M.R.E. 801(d)(2)(C), (D).      The

courts are divided on the treatment of prosecutors’ statements.

Some follow the common law principle that “no individual should

be able to bind the sovereign.”   See, e.g., United States v.

Zizzo, 120 F.3d 1338, 1351 n.4 (7th Cir. 1997).   Bakshinian, in

contrast, held that prosecutors can bind the sovereign.     65

F.Supp. 2d at 1106.   It is not necessary to decide among these

divergent views because, in this instance, at least, the trial

counsel’s argument underscores the different possibilities

concerning the findings.

     The majority imposes an unnecessary per se rule on cases in

which “divers occasions” are alleged, rather than examining the


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United States v. Augspurger, No. 04-0563/AF


individual facts to “identify and segregate those instances of

alleged use of which Appellant was acquitted,” __ M.J. __, (11)

(citation omitted), when the facts of record make that process

crystal clear.   They fail to apply judicial estoppel to the

divergent positions of the Government, and they fail to

distinguish this case factually from Walters.   But for the

prosecutor’s argument, this case would be factually

distinguishable from both Walters and Seider, but because the

prosecutor’s arguments bind the Government, I concur in the

result.




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