

   
   
   
   U.S. v. Weisbeck



IN THE CASE OF
UNITED STATES, Appellee
v.
John A. WEISBECK, Chief Warrant Officer Two
U.S. Army, Appellant
 
No. 98-0646
Crim. App. No. 9502215
 
United States Court of Appeals for the Armed
Forces
Argued December 17, 1998
Decided June 30, 1999
GIERKE, J., delivered the opinion of the
Court, in which
COX, C.J., and SULLIVAN and EFFRON, JJ.,
joined. SULLIVAN, J.,
filed a concurring opinion. CRAWFORD, J.,
filed a dissenting opinion.

Counsel
For Appellant: Richard T. McNeil (argued);
Mary
Ramsay McCormick (on brief); Captain Thomas Jay Barrett.
For Appellee: Major Lyle D. Jentzer
(argued); Lieutenant Colonel Eugene R. Milhizer (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 general court-martial composed of officer
members convicted appellant, contrary to his pleas, of taking indecent
acts or liberties with a child (2 specifications), indecent assault (2
specifications), committing indecent acts (1 specification), and communicating
indecent language to a child (3 specifications), all in violation of Article
134, Uniform Code of Military Justice, 10 USC § 934. The court-martial
sentenced appellant to a dishonorable discharge, confinement for 25 years,
and total forfeitures. The convening authority reduced the confinement
to 10 years, but otherwise approved the sentence. For various reasons,
the Court of Criminal Appeals set aside the guilty findings of five of
seven specifications, dismissed those specifications, and affirmed the
sentence except for reducing the confinement to 6 years. 48 MJ 570, 577-78.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ERRED IN LIMITING
APPELLANTS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY DENYING A CONTINUANCE
TO PROVIDE, AT NO COST TO THE GOVERNMENT, FOR THE APPEARANCE OF AN EXPERT
WITNESS AND, ADDITIONALLY, TO ENABLE THAT EXPERT TO ASSIST IN THE PREPARATION
OF THE DEFENSE CASE.

For the reasons set out below, we reverse.

Factual Background
In April 1994, appellant was tried by a general
court-martial at Fort Devens, Massachusetts, for sexually assaulting two
teenaged brothers, and he was acquitted. Appellant was represented by a
civilian, Michael J. Coughlin, at the Fort Devens court-martial. The thrust
of the defense in the Fort Devens court-martial was that the two alleged
victims had fabricated the accusations to get attention and better treatment
at the hospital where they were undergoing psychiatric treatment. Dr. Edwin
J. Mikkelsen, an associate professor in the Department of Psychiatry at
the Harvard Medical School, testified for the defense at the Fort Devens
court-martial "as an expert in false sexual abuse allegations by adolescents."
48 MJ at 573.
In July 1995, at Fort Rucker, Alabama, appellant
was charged with the offenses outlined above. Like the Fort Devens case,
the alleged victims were two adolescent boys.
At a docketing session on September 14, 1995,
the Fort Rucker case was scheduled for trial on either October 4 or October
12, with an Article 39(a), UCMJ, 10 USC § 839(a), session scheduled
for October 3. On September 22, the defense filed a motion in limine
to preclude admission of "any evidence, testimony, or other methods of
presentment" from the Fort Devens court-martial. The Government opposed
the motion in limine and indicated its intent to present the testimony
of the two boys involved in the Fort Devens court-martial (hereinafter
referred to as the "Devens boys"). The Government asserted that the testimony
of the Devens boys was admissible under Mil. R. Evid. 404(b), Manual for
Courts-Martial, United States (1995 ed.),*
to show a common "modus operandi of preying on nontraditional families
consisting of two young brothers . . . whose biological parents have divorced[,
and] whose mother has remarried, causing resentment by the two young brothers
against their stepfather."
On September 25, the detailed defense counsel
requested a continuance until October 12, and the military judge granted
it. At the Article 39(a) session on October 3, the military judge said
that he was "inclined to admit the testimony" of the Devens boys, although
he would not permit them to mention the Fort Devens court-martial. At this
point, the defense requested another continuance until November 16, to
prepare to meet the testimony of the Devens boys. Defense counsel argued
that the military judges ruling "forced [him] to litigate two courts-martial."
The military judge denied his request.
After the Article 39(a) session on October
3, appellant retained Mr. Coughlin, who had represented him in the Fort
Devens court-martial. The military judge was notified of Mr. Coughlins
entry of appearance at some time before October 12, the scheduled trial
date. He rescheduled the trial for November 29, 1995. 48 MJ at 573.
On November 20, at a telephonic RCM 802, Manual,
supra,
conference, Mr. Coughlin requested an additional continuance to arrange
for the testimony of Dr. Mikkelsen. 48 MJ at 573. The military judge denied
the request, indicating that Mr. Coughlin "had sufficient time to procure
either the presence of the witness or to secure the witness testimony
through alternate means."
Before the court-martial convened on November
29, Mr. Coughlin filed a written request for a continuance, setting out
Dr. Mikkelsens qualifications and describing his involvement in the Fort
Devens court-martial. The written request also recited that Mr. Coughlin
contacted Dr. Mikkelsen "upon entry of appearance"; that Dr. Mikkelsen
requested updated counseling records on the Devens boys to update his analysis
of the case; that the defense requested the records on October 20; and
that only partial records were supplied, less than a week before the scheduled
trial date of November 29. The written request concludes with the following:

The defense wishes to utilize Dr. Mikkelson
[sic] to independently examine the victims, their records and statements,
to ascertain whether the boys [sic] actions and behavior may instead constitute
or be consistent with that of false allegations. Dr. Mikkelson [sic] is
unavailable during the week of November 28th, and the defense
requests the matter be continued to January 10th, 11th
and 12th, 1996 to allow his attendance.

Regarding "alternate means," Mr. Coughlin informed
the military judge at trial that there was no verbatim transcript of Dr.
Mikkelsens prior testimony because the court-martial resulted in an acquittal.
Trial counsel informed the military judge that the Government had offered
to arrange a video teleconference, but Dr. Mikkelsen was unable to participate.
48 MJ at 573. In opposing the continuance, trial counsel asserted that
civilian defense counsel lives in or near Boston, where Dr. Mikkelsen teaches
and practices, but that he made no effort to contact Dr. Mikkelsen until
shortly before the RCM 802 session on November 20. Trial counsel argued
that they have "been on notice of what it was they had to do and what evidence
it was that they were going to face since July, but they didnt take any
steps until maybe two weeks ago to try and compel or try and obtain the
presence of Doctor Michelson [sic]." The record does not reflect any request
for production of the witness submitted in accordance with RCM 703(c)(2).
48 MJ at 573. Trial counsel did not assert that a continuance would in
any way be detrimental to the prosecution. The military judge denied the
request for a continuance.
The prosecution case rested primarily on the
testimony of the Rucker boys and the Devens boys. When the military judge
denied the defense motion in limine, he noted that "the record of
trial in the previous case is, in fact, the defenses defense"; and he
opined that, "while the defense has objected to it, it is clear that it
is in their interest to have this admitted."
The theory of the defense was that BT, the
older of the Rucker boys, broke into appellants house, looked at his pornographic
magazines, drank his beer, and rummaged through his personal papers, where
he found documents and newspaper accounts pertaining to appellants previous
court-martial at Fort Devens. The defense theory was that the Rucker boys
used this discovery to fabricate accusations similar to the Devens accusations
to extort money from appellant.
The Rucker boys initially accused appellant
of committing several of the offenses in February 1994. After the defense
served the Government with notice of intent to present an alibi, the Government
conceded that, in February, appellant was in Massachusetts and one of the
Rucker boys was in Florida. Over defense objection, three specifications
were amended to allege that the offenses were committed between May 1 and
November 30, 1994. One of these specifications, specification 2 of the
Charge, is one of the two offenses affirmed by the court below.
At trial, the defense argued that the Rucker
boys, confronted with appellants ironclad alibi, changed their story to
allege that the acts occurred later, after appellant moved to Fort Rucker.
The defense also argued that the accusations of the Rucker boys were too
similar to the accusations of the Devens boys to be credible.

Discussion
Appellant contends that the military judge
abused his discretion and deprived him of his right to call a witness and
his right to expert assistance in the preparation of his defense. The Government
argues that the military judge did not abuse his discretion because appellant
failed to show how the expert testimony was necessary and relevant to the
defense.
Article 40, UCMJ, 10 USC § 840, provides:
"The military judge . . . may, for reasonable cause, grant a continuance
to any party for such time, and as often, as may appear to be just." RCM
801(a)(1) empowers the military judge to set the time for each session
of a court-martial. RCM 906(b)(1) provides: "A continuance may be granted
only by the military judge." The non-binding Discussion of RCM 906(b)(1)
explains: "Reasons for a continuance may include: insufficient opportunity
to prepare for trial; unavailability of an essential witness; [and] the
interest of Government in the order of trial of related cases . . . ."
The standard of review of a military judges
decision to deny a continuance is abuse of discretion. There is an abuse
of discretion "where reasons or rulings of the military judge are clearly
untenable and . . . deprive a party of a substantial right such as to amount
to a denial of justice; it does not imply an improper motive, willful
purpose, or intentional wrong." United States v. Miller, 47 MJ
352, 358 (1997) (citations omitted).
The factors applied to determine whether there
was an abuse of discretion include:

[S]urprise, nature of any evidence involved,
timeliness of the request, substitute testimony or evidence, availability
of witness or evidence requested, length of continuance, prejudice to opponent,
moving party received prior continuances, good faith of moving party, use
of reasonable diligence by moving party, possible impact on verdict, and
prior notice.

Id., quoting F. Gilligan and F. Lederer,
Court-Martial
Procedure § 18-32.00 at 704 (1991).
RCM 703(a) implements the right of the prosecution
and defense to "equal opportunity to obtain witnesses and evidence, including
the benefit of compulsory process." RCM 703(c)(2) requires the defense
to "submit to the trial counsel a written list of witnesses whose production
by the Government the defense requests." RCM 703(d) prescribes the procedure
for employment of experts at government expense.
Applying the Miller factors to this
case, we conclude as follows:
(1) Surprise. There was no surprise
in this case. When the military judge announced on October 3 that he was
"inclined to admit the testimony" of the Devens boys, the military defense
counsel immediately requested a continuance to prepare to counter the testimony.
On November 20, at the telephonic RCM 802 conference, Mr. Coughlin requested
a continuance to arrange for the testimony of Dr. Mikkelsen. Before the
court-martial convened on November 29, Mr. Coughlin filed a written motion
for a continuance, along with a supporting memorandum.
2. Nature of the Evidence. Dr. Mikkelsen
was the heart of the intended defense strategy. Ordinarily, when the defense
requests expert assistance at government expense, they are not entitled
to an expert of their own choosing, especially where the Government offers
a qualified substitute. See United States v. Burnette, 29
MJ 473 (CMA), cert. denied, 498 U.S. 821 (1990). In this case, the
defense was not requesting that the Government produce and pay for the
expert. They were asking to use the same expert they had successfully used
in the Fort Devens court-martial to discredit the same two witnesses who
were scheduled to testify again in the Fort Rucker court-martial. See
United States v. Royster, 42 MJ 488, 490 (1995) (witnesses "are not
fungible"). In addition, the defense wanted to have Dr. Mikkelsen examine
the Rucker boys for evidence consistent with manipulated or contrived testimony.
The entire thrust of the defense was to use Dr. Mikkelsen to again discredit
the testimony of the Devens boys and, if the evidence warranted, discredit
the testimony of the Rucker boys. The Government did not offer a substitute,
but instead argued that Dr. Mikkelsens personal testimony was unnecessary.
3. Timeliness. Individual civilian counsel
requested the continuance on November 20, 9 days before the scheduled trial
date.
4. Substitute Testimony or Evidence.
There was no available substitute. There was no verbatim transcript of
the Fort Devens court-martial, because it resulted in an acquittal. See
RCM 1103(b)(2)(B) and (C). There was no possible substitute for Dr. Mikkelsens
evaluation of the Rucker boys, because the defense was not given time to
have Dr. Mikkelsen evaluate them. See United States v. Vanderwier,
25 MJ 263, 267 (CMA 1987) (military judge abused discretion where "record
provides no explanation" why trial could not have been delayed to allow
personal testimony instead of deposition); United States v. Cokeley,
22 MJ 225, 229-30 (CMA 1986) (military judge abused discretion by admitting
deposition instead of continuing case until witness was medically able
to travel and testify).
5. Availability of witness. There is
no factual dispute that the witness would have been available if the continuance
had been granted.
6. Length of Continuance. The requested
continuance was for less than 6 weeks.
7. Prejudice to Opponent. The Government
did not assert any prejudice arising from a continuance. Cf. Royster,
42 MJ at 490 (no abuse of discretion to deny continuance where testimony
of other witnesses might be lost); United States v. Sharp, 38 MJ
33, 38 (CMA 1993) (no abuse of discretion to deny continuance where further
delay could result in unavailability of witnesses), cert. denied,
510 U.S. 1164 (1994).
8. Prior Continuances. The defense had
received two continuances, the first requested by detailed defense counsel
and the second by individual military counsel.
9. Good Faith of Moving Party. There
has been no challenge to Mr. Coughlins good faith in asking for the continuance.
10. Reasonable Diligence by Moving Party.
The record shows reasonable diligence. The uncontested facts show that
Mr. Coughlin entered his appearance in early October. His motions recited,
without contradiction by the Government, that he contacted Dr. Mikkelsen
"upon entry of appearance." Mr. Coughlin also asserted, without contradiction,
that he requested records pertaining to the Devens boys, that only partial
records were supplied, and that the records were produced less than a week
before the scheduled trial date.
11. Possible Impact on the Verdict.
Dr. Mikkelsen was a key witness in the Fort Devens court-martial, where
appellant was acquitted. Without him, the defense had no expert testimony
to attack the credibility of the Devens boys or the Rucker boys.
12. Prior Notice. The military judge
informed Mr. Coughlin on November 20 that the trial would proceed on November
29, with or without Dr. Mikkelsen. This was insufficient time to find another
expert, give the expert time to study the records of the Devens boys, and
examine the Rucker boys.
The only justification for denying the continuance
was expeditious processing. Because the Fort Rucker court-martial was a
replay of the Fort Devens court-martial, the defense wanted the same expert
witness to attack the credibility of the Rucker boys and the Devens boys
in the same way that he had successfully done so in the Fort Devens court-martial.
The military judge recognized the importance of the Fort Devens court-martial
when he denied the motion to exclude the Devens boys testimony and observed
that "the record of trial in the previous case is, in fact, the defenses
defense." The record reflects no justification for denying the continuance
other than holding the defenses feet to the fire. "[U]nreasonable and
arbitrary insistence upon expeditiousness in the face of justifiable request
for delay" is an abuse of discretion. United States v. Soldevila-Lopez,
17 F.3d 480, 487 (1st Cir. 1994). We hold that the military
judge abused his discretion by denying the defense request for a continuance.

Decision
The decision of the United States Army Court
of Criminal Appeals is reversed. The findings of guilty and the sentence
are set aside. The record of trial is returned to the Judge Advocate General
of the Army. A rehearing may be ordered.
FOOTNOTE:
*All
Manual provisions are cited to the version in effect at the time of trial.
The 1998 version is unchanged, unless otherwise indicated.
 
 
SULLIVAN, Judge (concurring):
A key witness was left out of the defense case
here. In ruling on the continuance request, the judge seemed to be more
concerned with delay and his perceived lateness of the request than the
substance of the motion. Speed in the trial process has its place but fairness
and justice are far more important factors. I am reminded of an old judicial
rhyme:



The hungry judges soon the sentence sign,
and wretches hang that jurymen may dine.[*]



I join in this just reversal.
FOOTNOTE:
* Alexander Pope,
The
Rape of the Lock, canto III, line 21 (1712).
 
 
CRAWFORD, Judge (dissenting):
I dissent because the majority conducts a flawed
abuse-of-discretion analysis and fails to analyze this case based on harmless
error.

FACTS
The first alleged offense involving the victims,
herein referred to as the Rucker boys, occurred in February 1994, and the
second offense in June 1995. On July 13, 1995, charges were preferred against
appellant. At that time, the defense became involved in the Article 32,
UCMJ, 10 USC § 832, investigation which was completed on August 10,
1995.
On September 14, 1995, the judge docketed the
case to be tried beginning on October 4, 1995. Some time prior to September
25, the Government informed the defense that it intended to present the
live testimony of two boys, herein referred to as the Devens boys, who
had testified regarding sexual-abuse allegations at a previous court-martial
at Fort Devens at which appellant was acquitted.
During the arraignment on October 3, 1995,
trial defense counsel requested a further delay until November 16, 1995.
The judge denied this request and on defense counsels request for reconsideration,
he continued the trial until October 12, 1995. The judge also deferred
ruling on the defense request to exclude the Devens boys testimony under
Mil.R.Evid. 404(b). Later, during the trial, the judge apparently ruled
that the Devens boys could testify without first judging their credibility.
Shortly before October 12, appellant hired
a civilian defense counsel, Michael J. Coughlin, who had been his defense
counsel at the Fort Devens trial. Based on Mr. Coughlin's request, the
judge granted a continuance until November 29 to accommodate civilian defense
counsel's schedule. On November 20, 1995, the judge held a telephonic RCM
802 session with counsel, at which time the defense requested a continuance
to secure the assistance and testimony of "an expert in false sexual abuse
allegations," Dr. Edwin Mikkelsen. Dr. Mikkelsen would be procured at no
expense to the Government.
Dr. Mikkelsen provided critical testimony for
the defense at the Fort Devens court-martial. The defense here indicated
that they "wish[ed] to utilize Dr. Mikkels[e]n to independantly [sic] examine
the [Rucker] victims, their records and statements, to ascertain whether
the boys [sic] actions and behavior may instead constitute or be consistent
with that of false allegations." The defense wanted a delay for an indefinite
period, at least until January 10, 1996. Both the civilian defense counsel
and the expert lived near each other, but civilian counsel had apparently
not contacted the expert prior to requesting the continuance. The defense
had been on notice since early July 1995 of the Governments theory of
the case.
The Government agreed to procure the experts
testimony through alternate means, such as video-teleconference or a deposition.
The defense suggests that the judge was reluctant to grant any continuance
other than the first requested to accommodate civilian defense counsels
initial appearance.
The defense proffered that Dr. Mikkelsens
testimony and assistance was necessary for several reasons:



1. to aid the military judge and the members
in assessing the credibility of the [Devens] boys whom the government intended
to call to testify to prior bad acts allegedly committed by appellant but
for which appellant was acquitted, in large part due to the testimony of
Dr. Mikkelsen;
2. to provide the basis for cross-examination
of the [Devens] boys on the concept of "trans-
ferred abuse," the questioning of which was
challenged by the Government in the absence
of
expert testimony, such as Dr. Mikkelsens,
to explain the theory to the members;
3. to provide expert assistance to evaluate
whether the [Rucker] boys allegations were
a
product of psychological manipulation, to
prepare cross-examination questions to impeach
the [Rucker boys,] and to provide expert testi-
mony on the nature and causes of false sexual
abuse reporting; and
4. to provide expert assistance and testimony
to rebut the child sexual abuse expert listed
by the Government as a sentencing witness.



Final Brief at 6-7 (footnote omitted).
The judge denied this request.
The court below held, first, that Dr. Mikkelsens
unavailability could have been prevented by the defense. Second, it rejected
the defenses transference theory since, contrary to the Devens brothers
situation, there was no evidence that the stepfather of the Rucker boys
had physically abused them. Third, the court found that the doctors opinion
as to the credibility of the Rucker boys would not be admissible as it
made him the functional equivalent of a "human lie detector." 48 MJ at
575.

DISCUSSION
Given the proffer by the defense, the judge
did not abuse his discretion. Certainly, the defense expert could not testify
as to the credibility of the Rucker boys. See, e.g., United
States v. Birdsall, 47 MJ 404, 406 (1998). Furthermore, the judge could
not compel these boys to undergo psychiatric or physical examination by
a defense expert. United States v. Owen, 24 MJ 390, 395 (CMA 1987).
There is no hint in this case that they would cooperate voluntarily or
were even asked to undergo such examinations.
As to the second proffer regarding the transference
theory, that would not be relevant because there is no evidence that the
stepfather of the brothers had physically abused them. In any event, that
would not be reliable evidence. Francis A. Gilligan, Edward J. Imwinkelried
& Elizabeth F. Loftus, The Theory of "Unconscious Transference":
The Latest Threat to the Shield Laws Protecting the Privacy of Victims
of Sex Offenses, 38 B.C. L.Rev. 107 (1996).
As to the third proffer, the information is
not sufficient even to indicate how the expert would be employed.
As to the last proffer, this would be covered
by the Governments offers of an alternative expert in the local area to
assist the defense or to provide alternative means for Dr. Mikkelsen to
participate.
Courts have broad discretion on questions of
continuances, and their decisions will not be disturbed absent clear abuse
of that discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983);
Ungar
v. Sarafite, 376 U.S. 575, 589 (1964). The defense became involved
in this case in July 1995. Mr. Coughlin was hired in early October 1995,
had received one continuance, and then sought another continuance for an
indefinite period. Given the proffers made by the defense, the Government
offered reasonable alternatives to accommodate the defense. Appellate review
of whether a judge has abused his discretion in denying a continuance requires
a balancing analysis, weighing the publics right to prompt and efficient
justice against an appellants right to present his defense. "The public
has a strong interest in the prompt, effective, and efficient administration
of justice; the publics interest in the dispensation of justice that is
not unreasonably delayed has great force." United States v. Burton,
584 F.2d 485, 489 (D.C. Cir. 1978). Clearly, the judge did not abuse his
discretion in denying the continuance under these circumstances.
The majority does not apply a harmless-error
test as required by Article 59(a), UCMJ, 10 USC § 859(a). Here, the
defense theory of the case was that the Rucker boys, or at least the older
Rucker boy, had unlawfully obtained information about appellants prior
court-martial and was seeking to blackmail him for $60. There is little
evidence to support this theory. In fact, as the defense asserted, there
was no verbatim record of trial from the first court-martial: probably
only a skeletal record exists because of appellants acquittal. No record
of trial or other documents from Fort Devens were ever produced at trial
to show the potential for an alleged blackmail, even though such would
be in the possession of appellant.
Because of the majority's failure to analyze
properly the facts in the case and apply the harmless-error test, I dissent.

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