

   
   
   
   U.S. v. Abrams



United States, Appellee
v.
Jason M. ABRAMS, Private
U.S. Marine Corps, Appellant
 
No. 98-0784
Crim. App. No. 96-1714
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 1999
Decided May 21, 1999

CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.
 


Counsel
For Appellant: Lieutenant Dale O. Harris,
JAGC, USNR (argued); Lieutenant Albert L. Di Giulio, JAGC, USNR.
For Appellee: Lieutenant Commander JoAnn
W. Melesky, JAGC, USN (argued); Colonel Kevin M. Sandkuhler,
USMC and Commander Eugene E. Irwin, JAGC, USN (on brief); Commander
D.H. Myers, JAGC, USN.
Military Judge: E.J. McKay
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
At a general court-martial by military judge
alone, appellant was found guilty of pandering (2 specifications) and of
soliciting another to engage in prostitution, in violation of Article 134,
Uniform Code of Military Justice, 10 USC § 934. Pursuant to a pretrial
agreement, appellant pleaded guilty to 1 specification each of use and
possession of marijuana, as well as unauthorized absence,1
in violation of Articles 112a and 86, UCMJ, 10 USC §§ 912a and
886, respectively. He was sentenced to a dishonorable discharge, total
forfeitures, and 3 years confinement, all within the parameters of the
pretrial agreement. The convening authority approved; and the Court of
Criminal Appeals affirmed in an unpublished opinion dated April 13, 1998.
We granted review of the following issue:



WHETHER APPELLANT HAS BEEN DENIED HIS FIFTH
AMENDMENT RIGHT TO DUE PROCESS AND HIS SIXTH AMENDMENT RIGHT TO PRESENT
A DEFENSE BECAUSE THE MILITARY JUDGE FAILED TO SEAL AND ATTACH TO THE RECORD
OF TRIAL, THE PERSONAL [sic] RECORDS OF SEAMAN [P], USN, THE GOVERNMENTS
PRIMARY WITNESS AGAINST APPELLANT FOR CHARGE III AND THE ADDITIONAL CHARGE.



For the reasons set out below, we remand the case
to the Court of Criminal Appeals so that the records in dispute may be
provided to that court for its consideration.
On June 7, 1993, appellant was found guilty
at a special court-martial of 12 specifications of unauthorized absence,
and 1 specification of marijuana use, in violation of Articles 86 and 112a,
UCMJ, 10 USC §§ 886 and 912a, respectively. He was adjudged a
bad-conduct discharge, partial forfeitures, 75 days confinement, and reduction
to the lowest enlisted grade. The convening authority approved the sentence
and partially suspended the confinement.
The unauthorized absence which resulted in
this general court-martial began on July 8, 1993, and was terminated when
the Honolulu Police Department and Naval Criminal Investigative Service
apprehended appellant on May 3, 1995, a period of over 21 months. Appellant
apparently remained in Honolulu and set up civilian residence there during
that period under a different name. During that period, appellant allegedly
acted as "pimp" for his live-in girlfriend, Toni H., and, at least for
a week, for Seaman P.
As part of its pretrial discovery, defense
counsel requested the military records for Seaman P, the Governments key
witness on the pandering and solicitation charges. The Government opposed
the defense request, citing Mil. R. Evid. 401, Manual for Courts-Martial,
United States (1998 edition), and RCM 703(f), Manual, supra. In
response to a Defense Motion to Compel Discovery, the Government pointed
out at trial that it had already informed defense counsel that it would
willingly "turn over any adverse counseling entries" as well as the non-judicial
punishment under Article 15, UCMJ, 10 USC § 815, in Seaman Ps record
that she had received for her performance as a prostitute in relation to
the charges facing appellant.
In his motion before the military judge, defense
counsel proffered that he knew that Seaman P had been to therapy prior
to entering the military and needed to see her whole record to determine
if there was anything more in her file that could be used to impeach her
credibility. The military judge ruled that defense counsel had not



made any kind of threshold showing that what
may be in there would be necessary and relevant to the defense, and because
of that, Im going to take a look at that myself, and Ill decide what
you get at that point. If there is something that may become relevant on
down the line, I will keep that in mind, and well release that if it becomes
appropriate during the case in chief. At this point, as far as Im concerned,
its simply curiosity on the part of the defense as to what may be in there,
and that is not a basis for me to order the government to produce that
document to the defense.



For some unknown reason, the records reviewed
by the military judge were never attached to the record of trial.

DISCUSSION
RCM 703(f)(1) states that "[e]ach party is
entitled to the production of evidence which is relevant and necessary."
Relevant evidence is defined under Mil.R.Evid. 401 as that which has "any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable tha[n] it would
be without the evidence." Relevant evidence is defined as "necessary when
it is not cumulative and when it would contribute to a partys presentation
of the case in some positive way on a matter in issue." RCM 703(f)(1),
Discussion.
Given these standards, the military judge may
have been well within his discretion to determine that the defense proffer
was insufficient and deny the motion to compel discovery. We can well understand
his respect for the confidentiality of another servicemembers personnel
records and his interest in not opening them up to a blanket fishing expedition.
However, once the military judge determined that he would look at the records
in camera, effectively conditionally denying the motion,
it became incumbent upon him to do certain things.
Although the military justice system prides
itself on its very open discovery, the Rules for Courts-Martial provide
for the regulation of discovery by the military judge. RCM 701(g). The
"military judge may at any time order that the discovery or inspection
be denied, restricted, or deferred, or make such other order as is appropriate."
RCM 701(g)(2). To ensure a good balance between an accuseds right to a
fair trial, judicial efficiency, and confidentiality considerations, the
military judge has such tools as in camera reviews, and protective
or modifying orders at his disposal. Id.
In addition, there are particular rules which
apply to evidence which may be especially privileged from disclosure. Mil.R.Evid.
505 applies to classified information and Mil.R.Evid. 506 applies to non-classified
government information, disclosure of which would be "detrimental to the
public interest." Non-classified information covered by the latter includes
"official communication [sic] and documents and other information within
the custody or control of the Federal Government." Mil.R.Evid. 506(b).
On the facts of this case, it is clear that
Mil.R.Evid. 505 does not apply and it is unnecessary to decide whether
personnel records for an individual seaman fall within the scope of Mil.R.Evid.
506. However, it is important to note that, like RCM 701, both rules provide
for in camera reviews by the military judge, as well as protective
orders or partial disclosure in order to achieve the best balance between
needed confidentiality and the accuseds right to a fair trial.
What these various rules also make clear is
that once reviewed in camera by the military judge, the evidence
must "be sealed and attached to the record" to facilitate appellate review.
Mil.R.Evid. 506(i)(4)(D) and RCM 701(g)(2). RCM 1103 governs preparation
of the record of trial. Though it does not explicitly provide for sealing
and attaching records reviewed under the above circumstances, RCM 1103(b)(3)(B)
requires that any exhibits "marked for and referred to on the record but
not received in evidence" be attached. Furthermore, RCM 1103(h) and 1104(b)(1)(D)
regulate preparation and dissemination of records of trial which include
classified information.
"Failure to comply with [RCM 1103](b)(2) does
not necessarily require reversal. Rather, an incomplete or non-verbatim
record ... raises a presumption of prejudice which the Government may rebut."
Drafters Analysis, Manual, supra at A21-77. In United States
v. Gray, 7 MJ 296, 298 (CMA 1979), this Court held that the threshold
the Government must meet is substantial essentially because "what is of
concern here is not the sufficiency of the record for purpose of review,
but with the statutory command regarding the type of record that must be
made of courts-martial proceedings." In United States v. McCullah,
11 MJ 234, 236-37 (CMA 1981), this Court recognized that an "insubstantial"
omission fails to raise that presumption of prejudice. We must approach
the question of what constitutes a substantial omission on a case-by-case
basis. Cf. United States v. Toledo, 15 MJ 255, 257 (CMA 1983).
United States v. Gray, supra,
offers some helpful guidance for applying this standard to the case at
bar. There, omission of a sidebar conference at the court-martial rendered
the record non-verbatim and resulted in a remand to the Court of Military
Review. Quoting United States v. Sturdivant, 1 MJ 256, 257 (CMA
1976), we noted that "[n]ot every sidebar conference must be recorded verbatim,
but one involving a ruling by the judge affecting the rights of the accused
at trial must be fully recorded...." 7 MJ at 298. Since "[t]he Confrontation
Clause provides two types of protections for a criminal defendant: the
right physically to face those who testify against him, and the right to
conduct cross-examination," Pennsylvania v. Ritchie, 480 U.S. 39,
51 (1987)(plurality opinion), omission from the record of trial of the
evidence at issue here could have affected appellants rights.
In fact, the Supreme Court has found that evidence
used for impeachment purposes  appellants proposed potential use here
 can be just as important to a defendants right to a fair trial as that
used substantively. Napue v. Illinois, 360 U.S. 264, 269 (1959)
("The jurys estimate of the truthfulness and reliability of a given witness
may well be determinative of guilt or innocence, and it is upon such subtle
factors as the possible interest of the witness in testifying falsely that
a defendants life or liberty may depend."). Furthermore, "[i]n United
States v. Bagley, 473 U.S. 667[, 676](1985), the Court rejected any
distinction between exculpatory and impeachment evidence for purposes of
Brady
v. Maryland, 373 U.S. 83 (1963)." Ritchie, 480 U.S. at 65 n.2
(Blackmun, J., concurring in part and concurring in the judgment).
The Rules for Courts-Martial and of Evidence,
as well as this case law, are instructive both taken as a whole and individually.
What the military judge should have done, at a minimum, once he determined
that he would review Seaman Ps records in camera, was seal
the documents and attach them to the record so that appellate review could
proceed. In addition, the military judge could have allowed defense counsel
to review the documents under a protective order so that he could make
a more informed proffer and thereby possibly allow the military judge to
make a more enlightened decision on the defense motion.
The military judge failed to seal and attach
the disputed records, however, making proper appellate review impossible.
We cannot review the omission for its substantiality or for a violation
of Brady v. Maryland, supra, because we have no records to
review. We can only determine that there may have been something in Seaman
Ps records that could have been helpful for impeachment purposes and that
failure to disclose this information may have violated appellants rights.
See
United States v. Charles, 40 MJ 414, 418-19 (CMA 1994).
In addition, we do not agree with the court
below that appellants failure to "request the obvious remedy of requesting
us to order the records attached for ... review" indicates "that no substantial
right" was affected. Unpub. op. at 8. Indeed, the fact that defense counsel
failed to renew his proffer or make a request at the court-martial that
the records reviewed be sealed or attached, and did not object to the records
absence from the authenticated record makes no difference upon our ultimate
conclusion that we cannot review the military judges decision because
the records have not been sealed and attached to the record of trial.
So that adequate appellate review may be performed,
we remand this case to the lower court with an order that Seaman Ps records
be produced to the court below, which may include an appropriate protective
order to appellate counsel to preserve her privacy. See, e.g.,
United
States v. Avery, 48 MJ 408 (1997).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for remand to the Court of Criminal
Appeals for further proceedings in light of the augmented record. Thereafter,
the record of trial will be returned directly to this Court.
FOOTNOTE:
1 The initial charge
was desertion terminated by apprehension under Article 85, UCMJ, 10 USC
§ 885.
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