United States v. McFadden , 74 M.J. 87 ( 2015 )

UNITED STATES, Appellee
v.
Jessica E. McFADDEN, Airman First Class
U.S. Air Force, Appellant
No. 12-0501
Crim. App. No. 37438
United States Court of Appeals for the Armed Forces
Argued October 7, 2014
Decided March 3, 2015
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. OHLSON, J., filed a separate dissenting
opinion, in which BAKER, C.J., joined.
Counsel
For Appellant: Captain Michael A. Schrama (argued).
For Appellee: Captain Richard J. Schrider (argued); Gerald R.
Bruce, Esq. (on brief).
Military Judge: William M. Burd
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McFadden, No. 12-0501/AF
Judge STUCKY delivered the opinion of the Court.
After Appellant testified on her own behalf, a court member
asked if she was aware of the concept of lying by omission. We
granted Appellant’s petition for review to consider whether the
military judge abused his discretion by failing to grant a
mistrial or to sua sponte excuse the court member. We hold that
the military judge did not abuse his discretion in not granting
the mistrial, and he did not have a sua sponte duty to excuse
the member.
I. Posture of Case
Appellant was charged with conspiracy to desert her unit,
two specifications of desertion, and making a false official
statement. Articles 81, 85, and 107, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 885, 907 (2012). To each of
the two desertion specifications, Appellant pled not guilty but
guilty of absence without leave. Article 86, UCMJ, 10 U.S.C. §
886 (2012). She pled not guilty to the other charges. A
general court-martial composed of members convicted Appellant of
absence without leave, desertion, conspiracy, and making a false
official statement. Court members sentenced her to a bad-
conduct discharge, confinement for twenty-four months,
forfeiture of all pay and allowances, reduction to the lowest
enlisted grade, a fine of $1,650, and additional confinement of
thirty-six days if she failed to pay the fine. Except for the
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contingent confinement, the convening authority approved the
adjudged sentence.
The United States Air Force Court of Criminal Appeals (CCA)
affirmed the findings and the approved sentence. United States
v. McFadden, No. 37438, 2012 CCA LEXIS 90, at *4, 2012 WL
1059023, at *1 (A.F. Ct. Crim. App. Mar. 15, 2012)
(unpublished). We granted review to decide whether the military
judge abused his discretion by failing to excuse a court member,
and vacated and remanded the case to the CCA to consider the
granted issue in light of United States v. Nash, 71 M.J. 83
(C.A.A.F. 2012), without prejudice to raise other issues.
United States v. McFadden, 71 M.J. 403 (C.A.A.F. 2012) (summary
disposition).
In an opinion by Judge Soybel, a civilian appointed as an
appellate military judge by the Secretary of Defense, a panel of
the CCA held that the military judge did not abuse his
discretion in failing to excuse the member. United States v.
McFadden, No. 37438 (f rev), 2013 CCA LEXIS 240, at *2, *11,
2013 WL 1319455, at *4 (A.F. Ct. Crim. App. Mar. 19, 2013)
(unpublished). This Court set aside the CCA’s judgment and
returned the case for further review in light of the Supreme
Court’s opinion in Ryder v. United States, 515 U.S. 177 (1995)
(concerning the method of appointing civilians as appellate
military judges), and United States v. Carpenter, 37 M.J. 291
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United States v. McFadden, No. 12-0501/AF
(C.M.A. 1993), vacated, 515 U.S. 1138 (1995). United States v.
McFadden, 73 M.J. 41 (C.A.A.F. 2013) (summary disposition). A
panel of the CCA that did not include Judge Soybel affirmed the
findings and approved sentence. United States v. McFadden, No.
37438 (f rev), 2013 CCA LEXIS 814, at *12, 2013 WL 5436703, at
*4 (A.F. Ct. Crim. App. Sept. 26, 2013).
II. Facts
At trial, Appellant testified on her own behalf that she
never intended to remain away from her unit permanently, she
always planned to return to the military, and she did eventually
turn herself in to military control. The military judge asked
Appellant if she told either of the investigators who
interviewed her that she intended to return. The defense did
not object to the question or ask for an Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2012), hearing. Appellant answered: “Oh.
I don’t believe they ever asked.” The Government then asked if
Senior Airman (SrA) Acree, another military investigator, had
asked her if she intended to come back. The defense objected on
the ground that the question was beyond the scope of permissible
cross-examination. The military judge overruled the defense
objection. Appellant answered: “Yes, sir, but I used my right
to remain silent at the time.”
Major Cereste, a court member, and Appellant then engaged
in the following exchange:
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Q. My next question is: You testified today on
numerous accounts of overt deception, and to me you
seem to have a heightened intuition of other people’s
motives. For example, you were aware that perhaps
Airman Dover might tell people X, Y, Z, so you told
her certain things. Have you also heard of lying by
omission -- so -- exercising your right to remain
silent. So, how is your testimony today regarding
never intending to desert the Air Force permanently
different from your previous pattern of deception?
A. Because, before, I had never formed the intent to
remain away permanently. And I’ve already admitted to
going AWOL, which I take responsibility for, but I
don’t want people to think that intent was to never
come back.
During a subsequent Article 39(a) hearing, the defense
moved for a mistrial, asserting that, “[a]s a direct result of
that line of questioning, Major Cereste . . . accused Airman
McFadden of lying by omission by exercise of her right to remain
silent.”1 The military judge declined to grant the mistrial but
offered to instruct the panel. The military judge solicited
appropriate language for the curative instruction from the
defense and based his instruction on that language: “You may
not consider the accused’s exercise of her right to remain
silent in any way adverse to the accused. You may not consider
such exercise as lying by omission.” The military judge so
instructed the members at the next open session of the court-
1
This issue could have been avoided had the military judge
reviewed and ruled on the court member’s questions before
permitting them to be posed to Appellant. See Military Rule of
Evidence 614(b).
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martial. The defense did not ask the military judge to voir
dire or excuse any members.
III. Discussion
A. Failure to Grant Mistrial
A military judge “may, as a matter of discretion, declare a
mistrial when such action is manifestly necessary in the
interest of justice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness of
the proceedings.” Rule for Courts–Martial (R.C.M.) 915(a).
“[A] mistrial is an unusual and disfavored remedy. It should be
applied only as a last resort to protect the guarantee for a
fair trial.” United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F.
2003). It “‘is reserved for only those situations where the
military judge must intervene to prevent a miscarriage of
justice.’” United States v. Vazquez, 72 M.J. 13, 19 n.5
(C.A.A.F. 2013) (quoting United States v. Garces, 32 M.J. 345,
349 (C.M.A. 1991)).
“Because of the extraordinary nature of a mistrial,
military judges should explore the option of taking other
remedial action, such as giving curative instructions.” United
States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). A curative
instruction is preferred to granting a mistrial, which should
only be granted “when ‘inadmissible matters so prejudicial that
a curative instruction would be inadequate are brought to the
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attention of the members.’” Diaz, 59 M.J. at 92 (quoting R.C.M.
915(a) Discussion). “We will not reverse a military judge’s
determination on a mistrial absent clear evidence of an abuse of
discretion.” Ashby, 68 M.J. at 122, quoted in United States v.
Coleman, 72 M.J. 184, 186 (C.A.A.F.), cert. denied, 134 S. Ct.
458 (2013).
At trial, Appellant moved for a mistrial, arguing that the
trial counsel’s line of questions to Appellant caused Major
Cereste to accuse Appellant of “lying by omission,” and that the
Government was attempting to obtain “comment on her right to
remain silent on the record and into the members’ ears.”
Appellant now alleges that Major Cereste’s comments indicated
that she had already found Appellant guilty of the offense of
false official statement before the close of the evidence and
instructions by the military judge. In determining whether the
military judge abused his discretion by not granting a mistrial,
we look to the actual grounds litigated at trial.
There is no evidence that the trial counsel was attempting
to bring Appellant’s invocation of her right to remain silent to
the attention of the members. The trial counsel appears to have
asked about Appellant’s interaction with SrA Acree seeking
clarification of Appellant’s statement that she did not believe
the investigators asked her if she had intended to return to
military control. It was Appellant who decided that, rather
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than just answer the question asked, she would provide an
explanation: that SrA Acree had asked, but that she had invoked
her right to remain silent.
Using the instruction approved by the defense, the military
judge told the members that they could not consider Appellant’s
invocation of her right to remain silent against her, and that
they could not consider her invocation of those rights as lying
by omission. “‘Absent evidence to the contrary, court members
are presumed to comply with the military judge’s instructions.’”
United States v. Hornback, 73 M.J. 155, 161 (C.A.A.F. 2014)
(quoting United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F.
2003)). Major Cereste’s question was not so prejudicial that a
curative instruction was inadequate, and there is no evidence
the members did not follow those instructions. The military
judge did not abuse his discretion by denying the motion for
mistrial.
B. Failure to Sua Sponte Excuse Major Cereste
The parties have the right to challenge court members for
cause. Article 41(a)(1), UCMJ, 10 U.S.C. § 841(a)(1) (2012).
“A member shall be excused for cause whenever it appears that
the member . . . [s]hould not sit as a member in the interest of
having a court-martial free from substantial doubt as to
legality, fairness, and impartiality.” R.C.M. 912(f)(1)(N). A
party may challenge a member for cause “during trial when it
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becomes apparent that a ground for challenge may exist,” and a
hearing may be held to resolve the issue. R.C.M. 912(f)(2)(B).
Appellant did not ask to voir dire or challenge Major Cereste.
The military judge “may, in the interest of justice, excuse
a member against whom a challenge for cause would lie.” R.C.M.
912(f)(4) (emphasis added). A military judge has the
discretionary authority to sua sponte excuse the member but has
no duty to do so. See Jama v. Immigration & Customs
Enforcement, 543 U.S. 335, 346 (2005) (“The word ‘may’
customarily connotes discretion.”); Bryan A. Garner, Garner’s
Dictionary of Legal Usage 568 (3d ed. 2011).
This Court has characterized the discretionary authority of
a military judge to excuse a member sua sponte “‘in the interest
of justice’” as a “drastic action.” United States v. Velez, 48
M.J. 220, 225 (C.A.A.F. 1998) (quoting R.C.M. 912(f)(4)). We
hold that the military judge did not have a duty to sua sponte
excuse Major Cereste.
IV. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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OHLSON, Judge, with whom BAKER, Chief Judge, joins
(dissenting):
It has long been established that an accused has a right to
an impartial and unbiased panel during a court-martial. United
States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994). And yet in the
instant case, I conclude that the military judge failed to take
the required steps to vindicate this fundamental right on behalf
of Appellant, and that the military judge thereby abused his
discretion. Therefore, because I disagree with the majority’s
analysis of the assigned issues, I respectfully dissent.
Facts
As noted by the majority, at trial Appellant testified that
she twice had temporarily absented herself from her unit without
authorization, and thereby conceded that she was guilty of two
unauthorized absence offenses. Contrary to Appellant’s
assertions, however, the Government sought to prove that
Appellant intended to remain away from her unit permanently. As
a consequence, the court-martial centered on Appellant’s
truthfulness when she claimed at trial that she had never formed
the intent to permanently absent herself.
During an Article 39(a), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 839(a) (2012), session the defense noted
that the Government was likely to offer into evidence a
statement Appellant had made to investigators upon her return to
United States v. McFadden, No. 12-0501/AF
her unit. The defense argued that a portion of that statement
needed to be redacted in order to protect Appellant’s Article
31(b), UCMJ, 10 U.S.C. § 831(b) (2012), rights. Specifically,
the defense asked the military judge to require the redaction of
the section of the statement where an investigator, Senior
Airman Acree, asked Appellant if she had ever planned on turning
herself in, and Appellant had refused to answer. This issue
seemingly became moot when the Government informed the court
that it already had redacted that portion of the statement, and
the military judge then admitted the statement into evidence.
As the trial progressed, Appellant repeatedly asserted that
despite her absences from her unit -- which totaled
approximately three weeks -- she never had decided to remain
away permanently. At that point, however, the military judge
chose to begin asking Appellant questions in front of the panel
members. Specifically, the military judge asked Appellant if
she had told Investigator #1 or Investigator #2 that she
intended to “come back.” Appellant correctly responded that
these two investigators had not asked her that question and that
she “didn’t tell them one way or the other.” The military judge
did not pursue that matter further. Nevertheless, during its
recross examination of Appellant, the Government first gained
confirmation that Investigator #1 and Investigator #2 had never
asked her whether she intended to return to her unit, and then
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asked Appellant, “Did Senior Airman Acree ask you if you
intended to come back?”
Obviously mindful of the Article 31(b), UCMJ, implications
of the Government’s question, the defense immediately objected
on the ground that the question was “beyond the scope.” Without
hearing any argument on the point, the military judge overruled
the objection. Thus, the Government proceeded with its inquiry,
and Appellant conceded to trial counsel that when questioned by
Senior Airman Acree about her intentions of returning, “I used
my right to remain silent.”
Following examination by the parties and the military judge,
the military judge permitted the panel members to ask Appellant
questions. In doing so, the military judge failed to follow the
clear procedures spelled out in Military Rule of Evidence
(M.R.E.) 614(b).1 Rather, the military judge permitted the panel
members to directly question Appellant orally; nothing was
written down, and there was no prior review of the questions in
any manner. Not surprisingly, this highly irregular procedure --
1
M.R.E. 614(b) provides:
The military judge or members may interrogate
witnesses, whether called by the military judge, the
members, or a party. Members shall submit their
questions to the military judge in writing so that a
ruling may be made on the propriety of the questions
or the course of the questioning and so that questions
may be asked on behalf of the court by the military
judge in a form acceptable to the military judge.
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whereby no fewer than seven panel members asked questions that
span nearly thirty pages in the record of trial -- resulted in an
appealable issue.
Specifically, one of the panel members, Major Cereste,
asked Appellant the following “question” which is at issue:
Q. My next question is: You testified on numerous
accounts of overt deception, and to me you seem to have a
heightened intuition of other people’s motives. For
example, you were aware that perhaps Airman Dover might
tell people X, Y, and Z, so you told her certain things.
Have you also heard of lying by omission -- so --
exercising your right to remain silent. So, how is your
testimony today regarding never intending to desert the Air
Force permanently different from your previous pattern of
deception?
Once the panel members concluded their questioning of
Appellant, the military judge placed the court in recess and
then called an Article 39(a), UCMJ, session. At that session,
the defense noted that “since the members are out,” he was going
to now request a mistrial.2 In furtherance of this motion, the
defense counsel stated the following:
There was a line of questioning that took place during the
cross-examination -- I think the subsequent cross-
examination of Airman McFadden -- that had to do with a
statement about her exercising her right to remain silent.
And the prosecution had previously redacted that from the
1168. The defense did not open the door to that cross-
examination. The prosecution took advantage of an
2
The timing of the defense counsel’s objection was perfectly
appropriate. M.R.E. 614(c) provides, “Objections to the calling
of witnesses by the military judge or the members or to the
interrogation by the military judge or the members may be made
at the time or at the next available opportunity when the
members are not present.”
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opportunity presented by the court, during the court’s
questions, to enter into an area that the prosecution had
told us they would not. As a direct result of that line of
questioning, Major Cereste, in the back row, accused Airman
McFadden of lying by omission by exercise of her right to
remain silent.
At this time, pursuant to R.C.M. 915, we believe it’s
manifestly necessary in the interest of justice because of
[Appellant’s] response to a court member, to declare a
mistrial based on the government’s attempt to get that
statement -- that comment on [Appellant’s] right to remain
silent on the record and into the members’ ears.3
The military judge responded to this objection by: (a)
incorrectly characterizing Appellant’s testimony by stating that
Appellant had initially testified that “nobody” asked her about
whether she had intended to return to her unit; (b) opining that
the Government’s question was permissible because this answer by
Appellant was “misleading”; (c) denying the motion for a
mistrial; and (d) stating that he would “consider giving the
members a cautionary instruction.”
Indeed, upon reconvening the court-martial, the only action
the military judge took to address this issue was to instruct
the panel members as follows: “You may not consider the
accused’s exercise of her right to remain silent in any way
3
The United States Air Force Form 1168, referred to by the
defense counsel, is a standard form utilized in the
investigative context to take written statements providing
details of suspected criminal activity. The same form can be
tailored for statements from suspects, witnesses, and
complainants.
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adverse to the accused. You may not consider such exercise as
lying by omission.”
Analysis
In my view, the military judge’s single step of giving the
panel members a putatively curative instruction was insufficient
to ensure the fairness of the trial and did not adequately
ensure that the panel remained impartial and unbiased. See
Mack, 41 M.J. at 54-56. When Major Cereste equated Appellant’s
invocation of her right to remain silent with lying by omission,
it is apparent from the context that Major Cereste already had
concluded that Appellant was lying about the central point of
this court-martial -- whether Appellant was being truthful when
she testified that she had never formed the intent to absent
herself from her unit permanently. Therefore, based on the
record before us, it is reasonable to conclude that Major
Cereste had failed to remain open minded about the case until
the close of all the evidence, which directly contravened the
express prior instruction of the military judge. As a
consequence, absent any step by the military judge to voir dire
Major Cereste, I believe there is sufficient evidence for a
reasonable person to conclude that Major Cereste was no longer
an impartial and unbiased panel member. See United States v.
Strand, 59 M.J. 455, 459 (C.A.A.F. 2004). And, as the
provisions of Rule for Courts–Martial (R.C.M.) 912(f)(1),
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United States v. McFadden, No. 12-0501/AF
912(f)(1)(N), mandate, a panel member “shall be excused for
cause” when necessary to ensure that the court-martial is “free
from substantial doubt as to legality, fairness, and
impartiality.”
It is true that instead of seeking a mistrial it may have
been more appropriate for the defense counsel to have asked the
military judge to excuse Major Cereste and to voir dire the
other panel members to determine whether they had been tainted
by Major Cereste’s accusations against Appellant. After all,
granting a mistrial is considered a “drastic” remedy and such a
step generally would be highly disfavored without an additional
showing by the defense.4 Nevertheless, in light of the fact that
R.C.M. 915(a) states that a mistrial may be declared “in the
interest of justice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness of
the proceedings,” it was not entirely unreasonable for the
defense counsel to make such a request.
As the defense counsel noted in support of his mistrial
motion: (a) the military judge had unilaterally laid the
groundwork which resulted in his decision to improperly permit
the Government to elicit testimony from Appellant regarding her
prior invocation of her right to remain silent; (b) a panel
4
See United States v. Diaz, 59 M.J. 79, 90, 114-15 (C.A.A.F.
2003).
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United States v. McFadden, No. 12-0501/AF
member used this improper disclosure to conclude that Appellant
had lied by omission when she refused to admit to Senior Airman
Acree that she had intended to stay away from her unit
permanently;5 and (c) because the military judge had failed to
comply with the procedures contained in M.R.E. 614, the other
panel members had heard, and had been potentially tainted by,
Major Cereste’s comment about Appellant’s truthfulness.6 Thus,
it is understandable that the defense counsel had concluded that
“substantial doubt” had been cast “upon the fairness of the
proceedings.” R.C.M. 915.
Moreover, under such circumstances the military judge was
not presented with a binary choice of either granting a mistrial
or only giving an additional instruction. Rather, consistent
with this Court’s precedent, once the defense counsel made a
5
The importance of this improper disclosure is underscored by
the fact that the Government had scant independent evidence
proving that the Appellant intended to stay away from her unit
permanently. Rather, the Government’s case was based squarely
on the Appellant’s state of mind as demonstrated by her actions,
statements, and testimony. Accordingly, the Appellant’s
credibility was at the very heart of this case, and once Major
Cereste used the improper disclosure that the Appellant had
invoked her Article 31(b), UCMJ, rights as the basis for
challenging in open court the Appellant’s supposed acts of
“deception” and “lying by omission,” the Appellant’s credibility
was considerably undermined.
6
As evidence that other panel members may have been tainted by
Major Cereste’s accusatory questioning of Appellant, and of the
prejudice to Appellant that may have resulted from this
questioning, I note that the trial counsel recommended a
sentence that included confinement for eighteen months but the
panel awarded a sentence that included confinement for twenty-
four months.
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motion for a mistrial, the military judge was required to
consider any lesser remedies short of a mistrial that would
adequately address the defense’s legitimate concerns. See
United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). In my
view, Major Cereste’s questioning of Appellant adequately
demonstrated that she had not kept an open mind until the close
of evidence. And importantly, this failure to keep an open mind
was in direct contravention of the military judge’s prior
instructions. Accordingly, I believe there is no basis to
conclude on the record before us that Major Cereste would be
willing or able to follow any additional instructions the
military judge might give. Therefore, I find the military
judge’s decision to only give a putative curative instruction to
be wholly inadequate.
Conclusion
I conclude that based on the totality of the circumstances
in the instant case, at a minimum the military judge was
obligated to take the simple and appropriate step of voir diring
Major Cereste and the other court members to determine whether
additional measures were necessary to ensure that the panel
remained fair and impartial. Upon failing to take that step, I
conclude that the military judge should have recognized that
Major Cereste’s statement substantively brought into question
her fairness and impartiality, and therefore the military judge
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abused his discretion when he failed to sua sponte excuse Major
Cereste from the court-martial panel. Strand, 59 M.J. at 459-
60. Further, I do not find a basis to conclude that the
military judge’s putative curative instructions rendered this
error harmless.
Accordingly, because I disagree with the majority’s
analysis of the assigned issues, I respectfully dissent.
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