United States v. White , 2010 CAAF LEXIS 1029 ( 2010 )

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).
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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
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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.
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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.
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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
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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
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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
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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
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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