United States v. Bungert , 2006 CAAF LEXIS 196 ( 2006 )

UNITED STATES, Appellee
v.
Christopher S. BUNGERT, Avionics Technician Third Class
U.S. Coast Guard, Appellant
No. 05-0423
Crim. App. No. 1203
United States Court of Appeals for the Armed Forces
Argued January 10, 2006
Decided February 21, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Lieutenant Commander Nancy J. Truax (argued).
For Appellee: Lieutenant Commander John S. Luce Jr. (argued).
Military Judge: Gilbert E. Teal
This opinion is subject to revision before final publication.
U.S. v. Bungert, 05-0423/CG
Judge ERDMANN delivered the opinion of the court.
Avionics Technician Third Class Christopher Bungert pled
guilty to, and was convicted of, using amphetamines and
methamphetamines, distributing methamphetamines, attempting to
distribute methamphetamines, and one specification of
dereliction of duty, in violation of Articles 80, 92 and 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892,
912a (2000). Bungert pled not guilty to, and was acquitted of,
possession of methamphetamines and a second specification of
dereliction of duty, in violation of Articles 92 and 112a, UCMJ.
Bungert was tried by a special court-martial composed of a
military judge alone and was sentenced to a bad-conduct
discharge, 180 days of confinement and reduction to the lowest
enlisted grade. In accordance with a pretrial agreement, the
convening authority approved the sentence but suspended all
confinement in excess of 120 days for a period of twelve months.
The findings and sentence, as approved, were affirmed by the
United States Coast Guard Court of Criminal Appeals in an
unpublished opinion. United States v. Bungert, No. CGCMS 24264
(C.G. Ct. Crim. App. Feb. 23, 2005).
A claim of error that is not raised at trial is waived
unless it rises to the level of plain error. Military Rule of
Evidence (M.R.E.) 103. An appellant cannot establish plain
error unless he can show, inter alia, material prejudice to a
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U.S. v. Bungert, 05-0423/CG
substantial right. United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005). We granted review in this case to determine
whether it was plain error for the military judge to admit
evidence in aggravation that consisted of testimony describing
the impact of Bungert’s allegations that others in his unit had
used drugs.1 We find that Bungert has not met his burden to show
material prejudice to his substantial rights and, therefore, has
not established plain error.
BACKGROUND
In May 2003, a few days after he was asked to give a
voluntary urine sample, Bungert informed his commander that his
sample would test positive. He offered to identify other drug
users in the hanger deck in exchange for “a deal.” Bungert
implicated eleven individuals who worked on the hanger deck –-
six of whom he claimed to have had specific knowledge of their
drug use by personal contact and five of whom he suspected of
drug use through his observations of their actions. All eleven
individuals named by Bungert were drug tested. The six that
Bungert said he knew personally were interviewed by the Coast
Guard Investigative Service (CGIS). The investigation did not
1
We granted review of the following issue:
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY
ADMITTING AND CONSIDERING EVIDENCE OF UNCHARGED
MISCONDUCT WHICH WAS IMPROPER EVIDENCE IN AGGRAVATION
UNDER R.C.M. 1001(b)(4).
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U.S. v. Bungert, 05-0423/CG
turn up any evidence that any of the eleven had ever used
narcotics.
Bungert was convicted of four specifications alleging use,
distribution and attempted distribution of drugs, as well as one
specification of dereliction of duty.2 The Government called two
witnesses at Bungert’s sentencing hearing who primarily
testified about the nature and scope of the investigation that
was launched when Bungert identified eleven supposed drug users
on the hanger deck. His department head testified that as a
result of Bungert’s allegations, the base was shut down for a
day, the command was locked down and a base-wide urinalysis was
conducted, flight operations were canceled and maintenance
operations were shut down. The CGIS agent who investigated the
allegations testified that he interviewed Bungert and several of
the individuals who had been implicated and that he spent sixty
to seventy hours on the investigation over the course of five
weeks. Trial defense counsel did not object to the testimony of
either witness.
During closing arguments the trial counsel argued that
Bungert had made baseless allegations that took up time and
resources in an attempt to garner favorable treatment for
himself. The trial counsel asked that the wasted time and
2
The dereliction of duty specification involved a violation of
Article 92 for abuse of a Government credit card.
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U.S. v. Bungert, 05-0423/CG
energy of all individuals involved be taken into account when
determining Bungert’s sentence. Trial defense counsel did not
object to this line of argument.
DISCUSSION
Rule for Courts-Martial (R.C.M.) 1001(b)(4) provides:
The trial counsel may present evidence as to any
aggravating circumstances directly relating to or
resulting from the offenses of which the accused has
been found guilty. Evidence in aggravation includes,
but is not limited to, evidence of financial, social,
psychological, and medical impact on or cost to any
person or entity who was the victim of an offense
committed by the accused and evidence of significant
adverse impact on the mission, discipline, or
efficiency of the command directly and immediately
resulting from the accused’s offense.
Bungert argues that the military judge committed plain
error when he allowed evidence of uncharged misconduct in
violation of R.C.M. 1001(b)(4). He argues that the evidence
concerning the Coast Guard’s response to his allegations that
others were involved with drugs did not “directly” result from
his various drug offenses, but rather from his identification of
others involved with drugs and therefore did not constitute
proper evidence in aggravation under R.C.M. 1001(b)(4). The
Government responds that there was no plain error and that the
Coast Guard’s response to Bungert’s allegations that other
individuals were involved with drugs was a “direct” result of
his drug offenses.
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U.S. v. Bungert, 05-0423/CG
Where, as here, no objection is raised at trial, an
appellant can only prevail on appeal if he can show plain error.
M.R.E. 103. To establish plain error, the appellant must
demonstrate: (1) that there was error, (2) that the error was
plain or obvious, and (3) that the error materially prejudiced
one of his substantial rights. Fletcher, 62 M.J. at 179. The
appellant has the burden of persuading the court that the three
prongs of the plain error test are satisfied. United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
As all three prongs must be satisfied in order to find
plain error, the failure to establish any one of the prongs is
fatal to a plain error claim. Here, we need not address whether
there was error or whether any error was plain or obvious, as
even if these two prongs were satisfied, Bungert has failed to
establish any material prejudice to his substantial rights. See
Olano v. Gray, 507 U.S. 725, 737 (1993) (Supreme Court assumed
without deciding the existence of the first two prongs of the
plain error analysis and went directly to the prejudice prong).
Bungert has offered no evidence that he was prejudiced in
any substantial way by the testimony of the Government’s
sentencing witnesses. While he argues that these two witnesses
comprised the Government’s entire case in aggravation, he does
not explain how the outcome might have been different if their
testimony had been excluded, particularly in light of the fact
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U.S. v. Bungert, 05-0423/CG
that the sentencing was by a military judge sitting alone.
Bungert also fails to explain how he was materially prejudiced
when he received the protection and benefit of a pretrial
agreement that limited his maximum possible time in confinement
to 120 days regardless of the sentence adjudged by the court.
See United States v. Reist, 50 M.J. 108, 110 (C.A.A.F. 1999);
United States v. Hardsaw, 49 M.J. 256, 258 n.1 (C.A.A.F. 1998);
United States v. Williams, 47 M.J. 142, 144-45 (C.A.A.F. 1997).
In the absence of evidence of material prejudice, Bungert’s
plain error claim must fail.
DECISION
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
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United States v. Bungert, No. 05-0423/CG
CRAWFORD, Judge (concurring in the result):
I concur in the result and would follow Supreme Court
precedent concerning the “plain error” standard. See United
States v. Cary, 62 M.J. 277, 279-280 (C.A.A.F. 2006)(Crawford,
J., concurring in the result).