                       UNITED STATES, Appellee

                                    v.

                       Chantay P. WHITE, Major
                      U.S. Air Force, Appellant

                              No. 10-0182

                         Crim. App. No. 37282

       United States Court of Appeals for the Armed Forces

                        Argued October 5, 2010

                       Decided December 2, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY and RYAN, JJ., joined.


                                 Counsel

For Appellant: Captain Phillip T. Korman (argued); Colonel
James B. Roan and Major Shannon A. Bennett (on brief); Colonel
Eric N. Eklund.

For Appellee: Captain Charles G. Warren (argued); Colonel
Douglas P. Cordova and Gerald R. Bruce, Esq. (on brief); Colonel
Don M. Christensen.

Military Judge:   Stephen R. Woody


       This opinion is subject to revision before final publication.
United States v. White, No. 10-0182/AF

       Judge ERDMANN delivered the opinion of the court.

       At a general court-martial composed of members, Major

Chantay P. White was convicted of one specification of signing a

false official record and one specification of signing a false

official document, in violation of Article 107, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 907 (2006).     White was

sentenced to a dismissal.    The convening authority approved the

sentence and the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence.      United States v.

White, No. ACM 37282, 2009 CCA LEXIS 421, at *11, 2009 WL

4110862, at *4 (A.F. Ct. Crim. App. Oct. 21, 2009).

       Defendants do not have a constitutional right to present

any and all evidence, but only that evidence which is logically

and legally relevant.    United States v. Dimberio, 56 M.J. 20, 24

(C.A.A.F. 2001).    We granted review to determine whether the

military judge abused his discretion when he excluded, as not

relevant, evidence proffered by the defense.1


1
    We granted review of the following issues:

         I.   Whether the military judge abused his discretion
              and violated Appellant’s right to due process
              and a fair trial by erroneously excluding as
              irrelevant Appellant’s previously completed Army
              credentialing forms which provided insight into
              Appellant’s intent completing such credentialing
              forms.

        II.   Whether the trial judge abused his discretion
              and denied Appellant due process and her right
              to a fair trial by erroneously excluding

                                  2
United States v. White, No. 10-0182/AF

We find no error and affirm the decision of the Air Force Court

of Criminal Appeals.

                              Background

        In August 1986, when White was a teenager employed by the

Post Office, she was indicted in United States district court on

one count of embezzling mail, one count of embezzling United

States property, and one count of obstructing the passage of

mail.    The first charge was a felony and the second and third

charges were misdemeanors.    White pleaded guilty in March 1987

to the misdemeanor obstructing the passage of mail charge and

was placed on probation for three years.      The other two charges

were dismissed.

        White entered the Army in 1995 and transferred to the Air

Force in 2003.    During her period of service, White worked in

the medical area as a social worker and at the time of these

charges she was a licensed clinical social worker.      Medical

professionals in the military are required to complete various

“credentialing” forms which document their background,

professional education, and licenses.      When White entered the

Army in 1995, she completed an Army form entitled “Statement of

Health and Professional Status.”       Amongst other questions, that



              relevant lay opinions of Question D on Section
              VIII of AF Form (FM) 1540.

United States v. White, 69 M.J. 91 (C.A.A.F. 2010) (order
granting review).

                                   3
United States v. White, No. 10-0182/AF

form asked “Have you ever been convicted of an offense or been

liable in a civil suit?”   White answered “yes” to that question.

During her Army career, White also completed “Malpractice and

Privileges Questionnaires” in 1996, 1997, 1999, 2000, and 2002,

and a “Privileging Questionnaire” in 1998.    None of these

subsequent Army questionnaires contained any questions about an

applicant’s criminal history.

     After White transferred to the Air Force she completed

additional credentialing forms, including an Air Force Form 1540

“Application for Clinical Privileges/Medical Staff Appointment”

(AF Form 1540) in September 2006.    Question D in Section VIII,

“Practice History” of that form asked “Have you ever been a

defendant in a felony or misdemeanor case?”   White answered “no”

to that question.   White also completed an Electronic

Questionnaire for Investigations Processing (e-QIP) in March

2007 as part of her application for a security clearance.

Section 23 of the questionnaire is entitled, “Your Police

Record” and contained the question, “Have you ever been charged

with or convicted of any felony offense?”    White also answered

“no” to that question.   White’s answers to those questions were

false as she had been charged with a felony and had pleaded

guilty to a misdemeanor.

     In September 2007, a number of criminal charges were

preferred against White, including three specifications of



                                 4
United States v. White, No. 10-0182/AF

failure to go to her appointed place of duty, disobeying a

lawful order, making a false official statement, and conduct

unbecoming an officer.2   In January 2008, while the original

charges were pending, an additional charge was preferred against

White which contained one specification of signing a false

official record relating to her response on the security

questionnaire and one specification of signing a false official

document relating to her response on the AF Form 1540.

     At a pretrial Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2006), hearing convened to hear the defense evidentiary

motions, White’s defense counsel moved to admit the following:

an exhibit which contained seven of White’s Army credentialing

forms (the 1995 “Statement of Health and Professional Status”;

the 1996, 1997, 1999, 2000, and 2002 “Malpractice and Privileges

Questionnaires”; and the 1998 “Privileges Questionnaire”);

stipulations of expected testimony from an Air Force social

worker and an Air Force medical credentials manager, in which

they provided their opinion of the meaning of the criminal

history question on AF Form 1540; and the testimony (which the

defense anticipated being admitted by video teleconferencing at

trial) of an Air Force nurse as to her opinion of the meaning of

the criminal history question on AF Form 1540.


2
  These charges arose from incidents that occurred in January
2007 and are unrelated to the charges at issue in this appeal.
White was found not guilty of the original charges.

                                 5
United States v. White, No. 10-0182/AF

        At the Article 39(a), UCMJ, hearing, defense counsel argued

the credentialing forms were relevant and admissible.      Noting

that the 1995 Army “Statement of Health and Professional Status”

asked if White had ever been convicted of a crime and she had

answered “yes,” defense counsel argued that her affirmative

answer on this form would allow the trier of fact to infer she

had no motive to lie because she had previously disclosed her

criminal history.    While conceding that the other Army

credentialing forms did not include a question about criminal

convictions, White’s counsel argued that these forms were

necessary to show the panel that White had no intent to deceive

in her response on the AF Form 1540 because the Army forms

showed that her Army credentialing experience had separated

criminal history questions from practice history and medical

credentialing questions.

        The Government objected to the documents on relevancy

grounds, arguing that while the 1995 Army “Statement of Health

and Professional Status” form did ask about criminal history, it

was not relevant to White’s response in a different Air Force

form.    Trial counsel argued that since the remaining Army

credentialing forms contained no questions on criminal history,

they had no bearing on White’s response to the criminal history

question on the Air Force form and were not relevant to whether

she had an intent to deceive when completing the AF Form 1540.



                                   6
United States v. White, No. 10-0182/AF

     The military judge admitted the 1995 “Statement of Health

and Professional Status” in which White had answered “yes” to

the question of her criminal history.    He ruled it had limited

relevance with respect to White’s intent to deceive, but no

relevance to her state of mind as to mistake.   The military

judge did not admit the remaining credentialing forms, stating

that the difference in format and lack of any questions

regarding convictions or offenses rendered them not relevant to

the charged offenses.

     As to the two stipulations of expected testimony and the

anticipated testimony of the Air Force nurse, defense counsel

argued that their testimony would provide lay opinions regarding

their interpretation of the criminal history question on AF Form

1540, specifically that they interpreted that question to refer

only to convictions which occurred during the applicant’s

practice history.   Defense counsel argued that these lay

opinions were important to give the trier of fact an alternate

explanation for White’s state of mind as to whether or not she

knew the statement was false when she was filling out the form.

     The Government responded that the proposed testimony was

not relevant because none of the witnesses had discussed their

opinions as to the meaning of the question with White before she

filled out the form.    Responding to questions from the military

judge, defense counsel acknowledged the witnesses would testify



                                  7
United States v. White, No. 10-0182/AF

only to their personal interpretations of the question and not

to any conversation they had with White.

     The military judge denied the motion to admit the two

stipulations of expected testimony and the anticipated testimony

as not relevant.   The Air Force Court of Criminal Appeals agreed

with the military judge’s evidentiary rulings and found no abuse

of discretion.    White, 2009 CCA LEXIS 421, at *7, 2009 WL

4110862, at *3.

                             Discussion

     Before this court White renews her arguments that the

military judge erred in not admitting all of the Army

credentialing forms and the stipulated and anticipated testimony

proffered by the defense.   White argues that the evidence was

relevant and constitutionally necessary to her defense.    White

asks this court to reverse the Court of Criminal Appeals and set

aside the finding of guilty to the false official document

specification relating to Air Force Form 1540.   She does not

challenge nor ask for relief as to the false official document

specification relating to the security questionnaire.

Army Credentialing Forms

      White renews many of the arguments she raised before the

military judge and the Court of Criminal Appeals.   She argues

that the excluded Army credentialing forms reflected her

extensive background in completing these types of forms and



                                  8
United States v. White, No. 10-0182/AF

would establish her general state of mind as to the

credentialing process.   She urges that these forms “likely

informed her understanding of Air Force credentialing process”

and her interpretation of the criminal history question.

     “An accused at a court-martial is entitled to present

relevant evidence that is not otherwise inadmissible.”    United

States v. Roberson, 65 M.J. 43, 45 (C.A.A.F. 2007).     Military

Rule of Evidence (M.R.E.) 401 provides that relevant evidence

“means evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.”    Relevant evidence is admissible; evidence that is

not relevant is not admissible.   M.R.E. 402.   The relevance

standard is a low threshold.   United States v. Reece, 25 M.J.

93, 95 (C.M.A. 1987).

     The military judge has the initial responsibility to

determine whether evidence is relevant within the meaning of

M.R.E. 401.    This court reviews a military judge’s decision to

admit or exclude evidence for an abuse of discretion.    United

States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).     “The abuse

of discretion standard is a strict one, calling for more than a

mere difference of opinion.    The challenged action must be

‘arbitrary, fanciful, clearly unreasonable, or clearly

erroneous.’”   United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.



                                  9
United States v. White, No. 10-0182/AF

2010) (citations and quotation marks omitted).   The military

judge’s findings of fact are reviewed under a clearly erroneous

standard and conclusions of law, de novo.   United States v.

Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).    If the court finds the

military judge abused his discretion, it then reviews the

prejudicial effect of the ruling de novo.   Roberson, 65 M.J. at

47.

      Following extensive argument on the motion to admit the

credentialing forms the military judge held:

      With respect to the remaining [credentialing]
      documents . . . I will not allow that and sustain the
      government’s objection to those. Those will not be
      admitted. They are certainly different in format, and
      I have no question, in my mind, they are in any way
      related or relevant to the matters in issue before the
      court members. There are no questions about
      convictions or offenses or anything else, and I do not
      believe that they are relevant with respect to any of
      the charged offenses.

While the excluded Army forms were credentialing forms, they

were different in format and content from AF Form 1540 and did

not contain any questions concerning an applicant’s criminal

history.   In addition, these forms were completed by White four

to ten years prior to her completing the AF Form 1540 in 2006.

The excluded forms contained no information that would make the

existence of a fact at issue -- here White’s intent to deceive

-- more or less probable.   At best, White could only argue that

the form “likely informed her understanding of the Air Force

credentialing process.” (Emphasis supplied.)   The military


                                10
United States v. White, No. 10-0182/AF

judge’s ruling that the forms were not relevant was not an abuse

of discretion.

Lay Opinions

     White again renews the arguments she made before the

military judge and Court of Criminal Appeals.   She argues that

the three proffered lay opinions as to the meaning of the

criminal history question were relevant to determine the meaning

of the question and whether she made a false statement.    While

White does not argue that she was influenced by her co-workers’

opinions, she argues that their opinions were relevant to a

general understanding of the criminal history question and that

she “may have honestly shared their interpretation as a provider

with credentialing experience.”

     As with the excluded credentialing forms, in order to be

relevant the lay opinions must have some nexus to White and her

state of mind when she completed the AF Form 1540.   None of the

witnesses discussed their interpretations of the criminal

history question with White before she completed the form.    If

there had been evidence showing that these witnesses had

communicated their opinions to White prior to her completing the

credentialing form, the result may have been different.

However, without evidence that would have established a nexus,

their opinions are merely their own and have no relation to

White’s state of mind or her intent when she completed the AF



                                  11
United States v. White, No. 10-0182/AF

1540.    See Dimberio, 56 M.J. at 27 (finding no abuse of

discretion when the military judge denied a defense motion to

introduce opinion testimony that lacked a sufficient nexus).

The military judge did not abuse his discretion when he excluded

the proffered lay testimony.

                              Conclusion

        We conclude that the military judge did not abuse his

discretion when he excluded proffered Army credentialing forms

and the stipulations of expected testimony and anticipated

testimony.3    The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




3
  As we have upheld the military judge’s decision that the
evidence was not relevant, there was no need for him, or this
court, to conduct a M.R.E. 403 balancing test or a
constitutional prejudice analysis.

                                  12
