

   
   
   
   U.S. v. Phillips



IN THE CASE OF
UNITED STATES, Appellee
v.
Allen B. PHILLIPS, Cryptologic Technician
(Interpretive) Third Class
U.S. Navy, Appellant
 
No. 99-0313
Crim. App. No. 97-1458
 
United States Court of Appeals for the Armed
Forces
Argued October 19, 1999
Decided March 6, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and SULLIVAN, J., joined. EFFRON, J., filed
a dissenting opinion, in which COX, S.J., joined.

Counsel
For Appellant: Major Dale E. Anderson,
USMC (argued); Bridget J. Wilson.
For Appellee: Lieutenant Janice K. OGrady,
JAGC, USNR (argued); Commander Eugene E. Irvin, JAGC, USN, and Colonel
Kevin M. Sandkuhler, USMC (on brief); Major Troy D. Taylor,
USMC.
Military Judge: Peter J. Straub
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of conspiracy
to commit larceny, falsely signing official records (2 specifications),
and larceny (2 specifications), in violation of Articles 81, 107, and 121,
Uniform Code of Military Justice, 10 USC §§ 881, 907, and 921,
respectively. The adjudged and approved sentence provides for a bad-conduct
discharge, confinement for 120 days, and reduction to the lowest enlisted
grade. The Court of Criminal Appeals affirmed the findings and sentence.
49 MJ 521.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
EVIDENCE OF APPELLANTS HOMOSEXUAL CONDUCT TO PROVE APPELLANT DID NOT HAVE
A VALID MARRIAGE ENTITLING HIM TO BASIC ALLOWANCE FOR QUARTERS (BAQ) AND
VARIABLE HOUSING ALLOWANCE (VHA).

For the reasons set out below, we hold that the
military judge did not abuse his discretion.

Factual Background
The charges alleged that appellant conspired
with his wife, Lori Lussier, to fraudulently obtain BAQ and VHA, signed
official documents falsely representing that his wife resided with him,
and committed larceny by fraudulently obtaining BAQ and VHA. The prosecution
theory was that appellant entered into a sham marriage with Lori Lussier
in order to be allowed to move from the barracks into an off-base apartment,
live with his homosexual partner, and obtain BAQ and VHA to pay for the
apartment.
Before appellant entered his pleas, the defense
made a motion in limine to exclude any evidence of appellants sexual
orientation. The defense argued that the evidence was not relevant and
that its admission would be highly prejudicial and cause confusion of the
issues. The defense asserted that the court-martial was about stealing,
not sexual preference. The prosecution argued that appellants involvement
in a homosexual relationship that began before the purported marriage and
continued afterward tended to show that the marriage was a sham. The Government
also argued that, because appellant could not continue his homosexual relationship
in the barracks without risking discovery and could not afford to live
off base, the evidence was relevant to show his motive for conspiring with
Lori Lussier and fraudulently obtaining BAQ and VHA. The military judge
declined to rule, stating that he would address the issue as the evidence
developed.
Anticipating the possibility that evidence
of appellants sexual orientation would be admitted, the defense conducted
extensive individual voir dire of the members. Two of the three
officers who eventually heard appellants case said that they considered
homosexuality morally wrong. One officer said that he would consider appellants
sexual orientation on sentencing "[i]f that was allowed by the judge,"
but "[i]f its not something that we can consider, I wont consider it."
One officer thought that homosexuality was detrimental to good order and
discipline and stated that she would be biased toward a discharge if appellant
were convicted, but that she would follow the instructions of the military
judge. One officer and all three enlisted members said that they had no
negative feelings about homosexuality. However, one enlisted member said
he would be uncomfortable sharing a berthing area with a homosexual. None
of the members indicated that they would be less inclined to believe a
homosexual. One officer and one enlisted member specifically said that
homosexuality would not affect their assessment of credibility.
Much of the prosecution case-in-chief was uncontested.
The prosecution presented evidence that enlisted personnel in appellants
unit were not allowed to move off base and receive BAQ and VHA unless the
barracks were 95% occupied. On September 26, 1994, appellant requested
permission to move off base and was placed at the bottom of the waiting
list.
On May 29, 1995, Lori Lussier and Allison LeGros
rented an apartment in Honolulu, Hawaii, for a period ending on September
30, 1995. On July 12, 1995, appellant and Army Specialist (SPC) Jeffery
Runey executed a 1-year lease on an apartment in Makakilo, Hawaii. On August
3, 1995, appellant and Lori Lussier were married. On August 23, 1995, appellant
executed a "VHA Certificate," in which he stated that his "dependents"
were residing in the apartment in Makakilo, and that he was sharing the
apartment with another servicemember entitled to BAQ. On September 18,
1995, appellant requested that he receive BAQ and VHA. He began receiving
BAQ and VHA in November 1995, retroactive to August 3, 1995.
On October 26, 1995, appellant requested command
sponsorship for his wife. The request was approved on November 1, 1995.
On November 3, 1995, appellant signed a NAVPERS 1070/602R, "Record of Emergency
Data/Dependency Application," stating that his spouse, Lori Lussier, resided
with him.
On February 15, 1996, appellant re-executed
his lease, removing SPC Runey and listing himself as the sole tenant. On
March 5, 1996, he executed another "VHA Certificate," deleting the reference
to "other servicemembers entitled to basic allowance for quarters" and
again showing that his "dependents" resided with him.
The central issue in the case was whether appellants
marriage was a sham. The prosecution presented testimony from Cryptologic
Technician (Interpretive) Second Class (CTI2) Patrick Egge, appellants
assistant supervisor and friend, who testified that about a month before
the marriage, appellant told him that he was getting married "to move off
base." CTI2 Melissa Lavello, appellants former supervisor, testified that,
after a conversation initiated by appellant, she concluded that appellants
marriage was "a business deal." Her understanding was as follows:

[T]hat he didnt live with her, that he never
lived with her, and that he moved off base -- or he got married to live
off base, that it was a business deal. She didnt live with him. He didnt
live with her. He wasnt giving her housing money. They had their own lives.
But she got the dependent ID card which meant the privileges that go with
that and there was nothing more to it than that.

During the defense case-in-chief, appellant testified
that he met Lori Lussier in February 1995. They started dating approximately
3 weeks later, started talking about marriage in late March or early April
1995, and were married on August 3, 1995.
Appellant testified that his wife was the director
of a day care center in Honolulu, worked long hours, and did not want to
move from her apartment because of the long drive between his duty station
and Honolulu. He testified that his wife arranged a month-to-month lease
so that she could move if he could break his lease. He testified that he
took SPC Runey off the lease because they were "not really getting along
as roommates."
Appellant testified that he and his wife spent
time together when his schedule permitted. He worked rotating shifts so
that his "weekends" sometimes were on days other than Saturday and Sunday.
Appellant testified that he did not send any
money to his wife. He testified that "[s]he didnt ask [him] for anything,"
but he "supported her when she needed [his] support."
Appellant testified that he did not intend
to defraud the Government. He testified that a person at PSD (Personnel
Services Division) suggested that he show his wifes address as the same
as his so that he would not have to change it after she joined him. He
had never filled out VHA forms before, and he trusted the persons in PSD.
The defense renewed its motion in limine
before the prosecution case in rebuttal, again asserting that the evidence
of appellants sexual orientation was not relevant and that its admission
violated Mil. R. Evid. 403 and 404(b), Manual for Courts-Martial, United
States (1995 ed.).1 The
military judge ruled that he would allow the evidence to rebut the defense
assertions "that the accused and his wife held themselves out as a married
couple, were married, and engaged in a traditional relationship." He also
ruled that he would consider the evidence under Mil. R. Evid. 404(b) to
show motive and intent and to rebut the defense assertion that there was
a valid marriage. Although the defense specifically argued that admission
of the evidence violated Mil. R. Evid. 403, the military judge did not
articulate his Rule 403 analysis on the record.
After the military judge denied the defense
motion in limine, SPC Runey testified that he and appellant held
themselves out as a homosexual couple to "[a] close group of friends,"
both before and after appellants marriage. He testified that appellant
and he had an understanding before appellants marriage that their homosexual
relationship would continue after the marriage. Runey testified that appellants
wife was aware of their relationship. Runey also testified that his own
wife, Allison LeGros, and appellants wife held themselves out as a homosexual
couple before appellants marriage. Finally, Runey testified that he and
appellant leased the apartment to continue their homosexual relationship.
Runey did not testify about any specific homosexual acts.
Airman Harris testified that he had a homosexual
relationship with appellant during the summer or fall of 1995. He testified
further that appellant and Runey were a "homosexual couple" at the time.
The military judge instructed the members to
consider the evidence of homosexual conduct "only for the limited purpose
of rebutting other evidence regarding the character of the accuseds marriage."
He instructed them that they "may not consider this evidence of these acts
for the purposes of assessing whether or not the accused is a good or bad
person because of evidence of his alleged involvement in homosexual conduct
nor as propensity evidence to commit criminal acts."

Discussion
Appellant asserts that his homosexual conduct
does not make the validity of his marriage any more or less probable. He
argues that homosexual relationships have no legal status and that acts
of marital infidelity before or during marriage do not invalidate the marriage.
Finally, he argues that, even if the evidence has any probative value,
it is substantially outweighed by the danger of unfair prejudice.
The Government argues that the evidence was
admissible to show appellants motive and intent to obtain allowances to
which he would not otherwise be entitled. The Government further argues
that the evidence was proper rebuttal to appellants testimony that his
marriage was not fraudulent.
Mil. R. Evid. 404(b) prohibits admission of
"[e]vidence of other crimes, wrongs, or acts . . . to prove the character
of a person in order to show action in conformity therewith." However,
the rule permits such evidence for some purposes, such as proving motive
or intent.
This Court has applied a three-part test to
determine the admissibility of evidence of "other crimes, wrongs, or acts":
(1) the evidence must reasonably support a finding by the court members
that appellant committed prior crimes, wrongs, or acts; (2) the evidence
must make a fact of consequence more or less probable; and (3) the probative
value must not be substantially outweighed by the danger of unfair prejudice.
United
States v. Reynolds, 29 MJ 105, 109 (CMA 1989). We review a military
judges admission of evidence under Mil. R. Evid. 404(b) for abuse of discretion.
United
States v. Robles-Ramos, 47 MJ 474, 476 (1998). The military judges
exercise of discretion is reviewed on the basis of the facts before him
or her at the time of the ruling. United States v. Grant, 49 MJ
295, 297 (1998).
The third prong of the Reynolds test
requires the military judge to apply Mil. R. Evid. 403. A military judge
enjoys "wide discretion" in applying Mil. R. Evid. 403. United States
v. Rust, 41 MJ 472, 478 (1995).
Ordinarily, the existence of a marriage is
a question of fact to be decided in accordance with state law. United
States v. Allen, 27 MJ 234, 239 (CMA 1988). Acts of infidelity do not
invalidate a marriage. Woy v. Woy, 737 S.W.2d 769, 774 (Mo.App.
1987). Where, however, the issue is whether a servicemember has entered
into a sham marriage in furtherance of a conspiracy to defraud the Government,
the validity of the marriage under local law is not determinative. Lutwak
v. United States, 344 U.S. 604, 611 (1953).
In Lutwak, the Supreme Court set out
the test for determining whether a marriage is a sham entered into solely
for the purpose of obtaining government benefits. The Court said, "The
common understanding of a marriage, which Congress must have had in mind
. . . , is that the two parties have undertaken to establish a life together
and assume certain duties and obligations." Id.
In United States v. Bolden, 28 MJ 127,
130 (CMA 1989), this Court applied the Lutwak test and concluded
that, "when Congress authorized a basic allowance for quarters for a servicemember
with dependents, . . . Congress did not intend that the term include
a person who was linked to a servicemember by only a sham marriage."
To determine if the evidence of appellants
homosexual relationships was relevant, we must determine if a fact of consequence
was made more or less probable by evidence that appellant and his spouse
both lived with and had intimate relationships with a "significant other"
before the marriage, and that appellants relationships continued unchanged
during the marriage.
The key fact of consequence raised by appellants
testimony was whether appellant and Lori Lussier were "married" solely
for the purpose of obtaining government benefits, or whether they intended
to "establish a life together and assume certain duties and obligations."
In our view, the evidence of appellants relationships with SPC Runey and
Airman Harris made it more probable that appellant and his spouse intended
to continue their separate lives and relationships. The relevance of this
evidence to the nature of appellants marriage flows not from the homosexual
nature of the relationships, but rather from the fact that those relationships
existed before and continued after the marriage. Our analysis of the issue
whether appellants marriage was a sham would be the same if the evidence
showed heterosexual relationships.2
While the homosexual nature of the relationships
does not make the evidence more or less probative on the issue whether
appellants marriage was a sham, the fact that the relationships were homosexual
is significant in assessing the prejudicial impact of the evidence. Because
the military judge did not articulate the factors he considered in balancing
probative value against prejudicial impact, we do not accord him the deference
that flows from a properly articulated balancing. See United
States v. Harris, 46 MJ 221, 225 (1997).
Nevertheless, based on the facts before him,
we hold that the military judge did not abuse his discretion. SPC Runey
and Airman Harris described their relationships with appellant and between
Lori Lussier and Allison LeGros in generalized, non-inflammatory terms,
with no reference to specific acts. The military judge made his ruling
after hearing the court members responses during voir dire, where
only two of the six members expressed any moral disapproval of homosexuality.
The two members who expressed disapproval unequivocally stated that they
would follow the military judges instructions during deliberations. No
member expressed any inclination to disbelieve the testimony of a homosexual.
The military judges instructions limited the purpose for which the evidence
could be considered. Under the circumstances, we are satisfied that the
probative value of the evidence was not outweighed by the danger of unfair
prejudice.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 All
Manual provisions are cited to the version in effect at the time of trial.
The 1998 version is unchanged, unless otherwise indicated.
2
The Government offered the evidence as probative of motive, but the military
judge did not submit it to the members as evidence of motive. Thus, we
do not decide whether the evidence was admissible to show that appellant
entered into a sham marriage to obtain money for an apartment off base,
where he could maintain a relationship with SPC Runey that he could not
maintain in the barracks without risking discovery.


EFFRON, Judge, with whom COX, Senior
Judge, joins (dissenting):
As noted by the majority, the record
indicates that appellant told a friend he was getting married "to move
off base." The Government also introduced evidence that appellant's wife
continued to live in the separate apartment she maintained prior to the
marriage. The majority also notes that the defense introduced evidence
that appellant and his wife spent weekends together, that appellant's wife
worked long hours in a day care center, and that she did not want to move
from her apartment due to the long drive from the center to appellant's
duty station.
In an era of two-career relationships,
the timing of marriage and the nature of marital living arrangements may
be heavily influenced by such unromantic factors as tax laws, occupational
benefits, and professional opportunities. Despite the relatively high volume
of cases prosecuted in the military justice system involving the heterosexual
activity of married servicemembers, there is little indication that heterosexual
activity outside the marital relationship has led to allegations of "sham"
marriages. As the majority notes, marital infidelity does not prove that
a marriage is a sham.
In the present case, the infidelity
relied upon by the prosecution during its case in rebuttal was different.
The prosecution sought to discount appellant's testimony through proof
of his homosexual conduct.
In the armed forces, homosexuality
is different from any other form of sexual activity. There is no requirement
to discharge servicemembers who engage in adultery, heterosexual sodomy,
fraternization, sexual harassment, or child abuse. A person who engages
in homosexual conduct, however, is subject to mandatory discharge, with
very limited exceptions. 10 USC § 654(b). Congress, in enacting this
mandatory discharge requirement, specifically found that "[t]he presence
in the armed forces of persons who demonstrate a propensity or intent to
engage in homosexual acts would create an unacceptable risk to the high
standards of morale, good order and discipline, and unit cohesion that
are the essence of military capability." Id. at § 654(a)(15).
The statutory findings underscore the
high degree of antipathy to homosexuality in the armed forces. Under these
circumstances, it is essential that military judges ensure that evidence
of homosexuality not be introduced into a court-martial unless it is clear
that the probative value substantially outweighs the danger of unfair prejudice.
See
Mil. R. Evid. 403.
In the present case, appellant sought
to exclude evidence of his homosexuality. I agree with the majority that
a sexual relationship that both pre-dates and post-dates a marriage, regardless
of sexual orientation, is potentially relevant on the question of whether
a marriage is a sham. Mere relevance, however, is not enough where there
is a danger of unfair prejudice.
The majority takes comfort in the fact
that the military judge gave a limiting instruction, that the two witnesses
who described the homosexual relationships used non-inflammatory language,
and that only two of the six members of the court-martial panel expressed
moral disapproval of homosexuality. However, the introduction of an inflammatory
topic into a court-martial, even if done in a dispassionate manner, does
not demonstrate that the evidence was more probative than prejudicial.
Such a determination can be made only following a thorough explication
of the pertinent facts and a careful balancing of the applicable factors
on the record. As the majority notes, the military judge did not articulate
on the record the factors he relied upon. Although in many circumstances
it is possible for us to ascertain from the record the basis of the military
judge's ruling, this is not such a case. Given the extremely controversial
and volatile nature of the evidence introduced by the prosecution, I would
not engage in such speculation. I would reverse the decision of the court
below and set aside the results of trial. If such evidence is to be used
against appellant, it should be introduced only after a military judge
has set forth on the record the specific factors balanced under Mil. R.
Evid. 403.

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