United States v. Sowell , 2005 CAAF LEXIS 1109 ( 2005 )

UNITED STATES, Appellee
v.
Stacie M. SOWELL, Seaman
U.S. Navy, Appellant
No. 03-0688
Crim. App. No. 9901777
United States Court of Appeals for the Armed Forces
Argued March 8, 2005
Decided September 30, 2005
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and EFFRON, J., joined. ERDMANN, J., filed a separate
concurring opinion. CRAWFORD, J., filed a dissenting opinion.
Counsel
For Appellant: Captain James D. Valentine, USMC (argued);
Captain E.V. Tipton, USMC.
For Appellee: Captain Glen R. Hines, USMC (argued); Lieutenant
Colonel William K. Lietzau, USMC, and Lieutenant Frank L. Gatto,
JAGC, USNR (on brief).
Military Judge: Mark S. Utecht
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sowell, No. 03-0688
Judge BAKER delivered the opinion of the Court.
Appellant was tried by members at a special court-martial.
Contrary to her pleas, she was convicted of conspiracy and
larceny in violation of Articles 81 and 121, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 881, 921 (2000),
respectively. These offenses arose from the theft of two
government personal computers. The adjudged and approved
sentence included a bad-conduct discharge, confinement for
thirty days, and a fine of $550. This Court granted review on
the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE
RESTRICTED APPELLANT’S UNSWORN STATEMENT BY NOT
ALLOWING HER TO STATE THAT HER CO-CONSPIRATOR HAD BEEN
ACQUITTED.
Two of Appellant’s three alleged co-conspirators were not
criminally charged and were subsequently administratively
separated from the service. The third, Fire Controlman Third
Class (FC3) Elliott, was tried by a separate court-martial prior
to Appellant’s trial on substantively identical charges and
found not guilty. Elliott testified on Appellant’s behalf at
trial, stating among other things that she and Appellant never
talked about stealing computers, that she herself never took any
computers, and that she never saw Appellant take any computers.
Subsequent to her testimony, a panel member proffered the
following question for Elliott: “What legal actions have been
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taken/or are pending against you for this incident?” Trial
counsel objected to the relevance of the question, and the
military judge disallowed it.
Trial counsel later challenged the credibility of Elliott’s
testimony during her findings argument stating:
Motives. Let’s talk about motives just for a second.
I’ll come back to that later when I talk about each of
the witnesses and any motive they may have. Petty
Officer Elliott. Who has the biggest motive to come
in here and say they didn’t do it? The co-
conspirator, that’s who. Not Miller, not Schwey, the
co-conspirator. She’s the one that has the best
motive to lie . . . . She wants to help her friend
and if her friend goes down?
Emphasis added. Defense counsel made no objection and Appellant
was ultimately found guilty.
At a session held pursuant to Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000), following the announcement of the
findings, trial counsel noticed that Elliot was present in the
courtroom. She then asked the military judge to warn the
defense that Elliot’s acquittal should not be disclosed to the
members. In response, defense counsel asserted that if his
client wished to mention it in her unsworn statement, it was her
right to do so. When pressed for authority for this position,
defense counsel cited United States v. Grill, 48 M.J. 131(C.A.A.F. 1998), arguing that the right to allocution is broad
and included the right to reference Elliott’s acquittal in the
unsworn statement. The military judge granted the Government’s
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request finding that reference to Elliott’s acquittal would be
“irrelevant and a direct impeachment of the verdict of the
members. . . .”
On appeal, a split panel of the United States Navy-Marine
Corps Court of Criminal Appeals reversed the military judge’s
ruling and remanded for a rehearing on sentence. United States
v. Sowell, 59 M.J. 552 (N-M. Ct. Crim. App. 2003). The
Government sought and obtained an en banc rehearing. On
rehearing, a 4-3 majority reversed the earlier panel’s decision,
reinstating the military judge’s ruling and Appellant’s
sentence, on the ground that any mention of Elliott’s acquittal
in her unsworn statement would have challenged the decision of
the members on findings and was otherwise beyond the “relevant
scope of inquiry . . . as defined by R.C.M. 1001(c)(1).” United
States v. Sowell, 59 M.J. 954, 959 (N-M. Ct. Crim. App. 2004.)
Whatever the general rule regarding verdict impeachment and
sentence comparison, Appellant’s case is distinct, because the
Government implied that Elliott was guilty of the very offense
for which the accused was on trial. Therefore, we now consider
whether the military judge correctly limited Appellant’s
statement regarding the disposition of Elliott’s case because
such information would have impeached the verdict, or
alternatively, whether the military judge erred because this
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information was a fair response in rebuttal to trial counsel’s
findings argument.
Discussion
We review a military judge’s decision to restrict an
accused’s sentencing statement for abuse of discretion. See
generally Grill, 48 M.J. at 132. The Manual for Courts-Martial,
United States (2002 ed.), provides an accused with the right to
“testify, make an unsworn statement, or both in extenuation, in
mitigation or to rebut matters presented by the prosecution . .
. .” Rule for Courts-Martial (R.C.M.) 1001(c)(2)(A). This
traditional right has been described as “broadly construed” and
“largely unfettered.” Grill, 48 M.J. at 133. However, while
“the scope of an unsworn statement may include matters that are
otherwise inadmissible under the rules of evidence, the right to
make an unsworn statement is not wholly unconstrained.” United
States v. Tschip, 58 M.J. 275, 276 (C.A.A.F. 2003); United
States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998).
In Grill, while describing the right of allocution as
largely unfettered, we also stated that the right, while
“generally considered unrestricted,” “was not wholly
unrestricted.” Id. at 132 (emphasis added); see also Tschip, 58
M.J. at 276. In United States v. Teeter, 16 M.J. 68, 72-73
(C.M.A. 1983)(no obligation to provide accused two chances to
defend on the merits through unsworn statement), and more
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recently in United States v. Barrier, 61 M.J.__ (C.A.A.F.
2005)(information in unsworn statement must be relevant as
extenuation, mitigation or rebuttal), we identified specific
limitations on the right of allocution. We also recognized that
the unsworn statement remains a product of R.C.M. 1001(c) and
thus remains defined in scope by the rule’s reference to matters
presented in extenuation, mitigation, and rebuttal. And, as
early as United States v. Tobita, 3 C.M.A. 267, 271-72, 12
C.M.R. 23, 27-28 (1953), it was held that on sentencing, the
accused cannot impeach the findings.
The Government argues before this Court, as it did before
the military judge, that reference to Elliott’s acquittal would
have impeached the findings, as Appellant and Elliott were
charged with the same offenses involving the same facts.
Moreover, the Government argues, such information would also
have been precluded under United States v. Mamaluy, 10 C.M.A.
102, 27 C.M.R. 176 (1959), as impermissible sentence comparison.
Ordinarily, such information might properly be viewed in
context as impeaching the members’ findings. As the Court of
Criminal Appeals concluded, Teeter and Mamaluy remain good law.
However, we conclude under the limited circumstances of this
case, that the Government’s argument on findings opened the door
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to proper rebuttal during Appellant’s unsworn statement on
sentencing.1
The function of rebuttal is “to explain, repel, counteract
or disprove the evidence introduced by the opposing party.”
United States v. Banks, 36 M.J. 150, 166 (C.M.A. 1992)(quoting
United States v. Shaw, 9 C.M.A. 267, 271, 26 C.M.R. 47, 51
(1958)(Ferguson, J., dissenting)). Trial counsel was aware of
Elliott’s acquittal on the same facts the week before.
Nonetheless, her references to Elliott as a co-conspirator, a
term connoting criminal liability, during her findings argument
implied that Elliott was guilty of the same offense as
Appellant, and therefore had a motive to lie in order to protect
herself from prosecution. Absent the inference raised in trial
counsel’s argument, the military judge might well have found
reference to Elliot’s acquittal irrelevant to any sentencing
issue. However, the members were instructed on sentencing that
“all the evidence you have heard in this case is relevant on
sentencing.” R.C.M. 1001(f)(2). It is true that argument by
counsel is not evidence. However, it would seem in this case,
with the members having been instructed concerning all the
evidence, that the right to rebuttal on sentencing should extend
1
We note that during her unsworn statement Appellant helped to mitigate the
concern the military judge may have had about impeachment of the guilty
findings when she said during her statement, “I accept your judgment against
me.”
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to allowing comment upon trial counsel’s characterization of
that evidence during findings. After all, R.C.M. 1001(c)(2)(A)
affords an accused the right to “rebut matters presented by the
prosecution,” suggesting a somewhat broader reading than one
limiting the right only to rebut “evidence.”2 Thus, the tenor of
trial counsel’s argument opened the door to the accused to
“explain” Elliot’s true status. Moreover, in this case,
Elliot’s status was already an issue with at least one member of
the panel and remained an open question in light of Appellant’s
reference to the other two co-conspirators. In this context,
Appellant should have been permitted an opportunity to fairly
respond to the implications of trial counsel’s argument on
findings. In the terms of the well-worn metaphor, the
Government was not only using Teeter as a shield to prevent the
members from learning of Elliott’s acquittal, but also as a
sword to imply that Appellant’s co-conspirator was guilty. This
was unfair in the context presented.
We are cognizant that Appellant failed to object to trial
counsel’s argument during findings. This could suggest that
counsel concluded that the implications of the argument had not
registered with the members. However, at least one member had
already asked a specific question regarding the disposition of
2
Of course, an accused would be prohibited from attempting to relitigate the
findings in the guise of rebuttal. See Tobita, 3 C.M.A. 267, 12 C.M.R. 23.
8
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Elliott’s case. Moreover, defense counsel squarely placed the
issue before the military judge on sentencing. Finally, during
her unsworn statement, Appellant was allowed to make specific
reference to the disposition of the cases of two of her three
co-actors. Elliott’s status, however, was left hanging and
subject to the members’ speculation.
In this context, the military judge erred by not allowing
Appellant to address the disposition of Elliott’s case. This
might have been followed by an instruction to the members on the
appropriate inferences that could be drawn from the information,
citing the principles enunciated in Teeter and Mamaluy. In
turn, any statement made by Appellant on this point would have
been subject to rebuttal.
Having determined that the military judge erred, we must
determine whether the error had a “substantial influence” on the
sentence adjudged. United States v. Pablo, 53 M.J. 356, 359
(C.A.A.F. 2000). Although the members might have drawn the
inference that Elliott was acquitted or received no punishment
on account of her presence in the courtroom, they might also
have reasonably inferred that she had yet to be tried for the
same offense as Appellant. Because Elliott was an alleged co-
conspirator with Appellant based on the same facts, trial
counsel’s argument and its implications necessarily reached to
the core of Appellant’s own case. As a result, we are not
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convinced that, in the narrow circumstances of this case, the
failure to permit Appellant to address the disposition of
Elliott’s case in her unsworn statement did not have a
substantial influence on the members’ sentencing decision.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed as to the findings but reversed
as to the sentence. The record of trial is returned to the
Judge Advocate General of the Navy. A rehearing on sentence may
be ordered.
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ERDMANN, Judge (concurring):
I concur. I write separately to emphasize my view
that the right to make an unsworn statement is specifically
defined and limited by the Manual for Courts-Martial,
United States (2002 ed.) (MCM). The scope of pre-sentence
allocution through an unsworn statement includes
extenuation, mitigation, and matters in rebuttal. Rule for
Courts-Martial 1001(c)(2)(A), MCM. See United States v.
Barrier, 61 M.J. ___, ___ (C.A.A.F. 2005)(Erdmann, J.,
concurring in the result). I agree that the Government
opened the door for Sowell to refer to her co-actor’s
acquittal in an unsworn statement. Sowell’s unsworn
reference to Elliott’s acquittal would have rebutted the
Government’s suggestion that as a “co-conspirator” Elliott
had a motive to lie. Under the facts of this case, it was
prejudicial error for the military judge to exclude this
information from Sowell’s pre-sentence unsworn statement.
United States v. Sowell, No. 03-0688/NA
CRAWFORD, Judge (dissenting):
I respectfully dissent because the majority does not
examine the context in which this issue arises, mixes findings
with sentencing evidence, neglects the burdens that are placed
on the parties at various stages of the trial, and fails to
analyze the standard of review.
Perhaps most importantly, this decision again raises a fair
question regarding the extent to which courts-martial are to be
tried according to established rules of law and then evaluated
on appeal according to those same rules. In what has become a
familiar theme of late,1 I again must question how we can expect
the Rules for Courts-Martial and the Military Rules of Evidence
to provide structure and stability to military trials when this
Court continues to apply those rules with a malleability that
must lend to our decisions, from a practitioner’s point of view,
certain characteristics of a sweepstakes.
1
See, e.g., United States v. McNutt, __ M.J. __ (C.A.A.F.
2005)(rejecting three decades of settled law on sentencing by
military judge alone); United States v. Brewer, 61 M.J. __
(C.A.A.F. 2005)(rejecting MCM provisions on inferences and re-
interpreting settled character evidence rules); United States v.
Warner, __ M.J. __ (C.A.A.F. 2005)(rejecting five decades of
Article 46, UCMJ, interpretation to redefine “reasonably
comparable” defense expert); United States v. Kreutzer, 61 M.J.
293 (C.A.A.F. 2005)(finding new right of constitutional
magnitude to capital mitigation specialist despite at least six
related experts on defense team); United States v. Collins, 60
M.J. 261 (C.A.A.F. 2004)(reinterpreting R.C.M. 706 to impose new
requirements on military judge).
United States v. Sowell, No. 03-0688/NA
The majority holds “the military judge erred because this
information [the acquittal of a co-conspirator] was a fair
response in rebuttal to trial counsel’s findings argument.”
United States v. Sowell, __ M.J. __, __ (4) (C.A.A.F. 2005).
This holding overlooks the required foundational predicates for
the admissibility of evidence. Military Rule Of Evidence
103(a)(2) provides that the party seeking to admit evidence will
make a proffer as to the admissibility of the evidence. What
proffer was made in this case?
At trial, the defense counsel noted prior to sentencing
that the acquittal of the co-conspirator would be an appropriate
subject for Appellant’s unsworn statement. “[I]f in my client’s
unsworn statement she desires to bring that to the member’s
[sic] attention that’s certainly well within her rights to do
so.” The military judge inquired as to the basis for that, and
the defense replied that admissibility was based on United
States v. Grill, 48 M.J. 131 (C.A.A.F. 1998), because:
[T]he Court said it was reversible error for the judge
to deny the individual servicemember to provide in an
unsworn statement testimony about other individuals
who are involved in a conspiracy and the fact that
some individuals did not have charges brought against
them; some other individuals received only probation;
and other individuals had lesser and lenient
treatment. And certainly the facts of this case are
similar to this.
The following colloquy took place between the military
judge and counsel:
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MJ: The issue for me in reading this is disparate
handling and I concur with you with respect to
identifying that nothing happened to Schwey,
Cormier, would be appropriate. The handling of
Petty Officer Elliott’s case took place in
precisely the same way as this, so what’s the
relevance of the information?
DC: Well, the relevance, sir, just as in that case,
that it gives the members an opportunity and
information on which to determine their sentence.
And in those cases other individuals --
MJ: I had no problem with, if there was a sentence in
the case, bringing that to the attention of the
members, but we don’t have a sentence.
DC: That’s right, sir, and the fact that --
MJ: So what’s the fit?
DC: Well the fit would be then that Petty Officer
Elliott has received no punishment whether --
MJ: Because she was found to have been not guilty of
something. I mean, as I understand it, the
verdict was a finding of not guilty.
DC: Yes, sir. And for that reason --
MJ: And that is certainly not a receiving of no
punishment by any sentencing authority.
DC: That’s what I’m saying, sir. She’s received no
punishment because she was acquitted. She
couldn’t be punished.
MJ: And if your client was found not guilty she
couldn’t be punished, so what’s your point?
DC: I agree, sir. The point is, sir, the members
should be aware of it so that they can make a
decision based on all those circumstances.
MJ: You have an awful broad brush you’re painting
here. I mean, it’s not -- I have no problem,
like I said, if you’re talking disparate
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treatment of individuals in the same class, and
here you’re talking the same-class. Four
coconspirators and you can identify to them that
these two -- that two of the people that were at
least allegedly involved, particularly given the
findings of the court, received different
sentences. But I’ve read the case pretty
carefully and again, it goes back to treatment by
members -- I mean treatment by the convening
authority and one is saying, “Why I’ve received
such favorable treatment and why I’m being
treated so harshly.”
DC: Well, sir, I get --
MJ: Petty Officer Elliott and Seaman Sowell were
treated precisely the same way. They were both
sent to a court martial.
DC: I understand that, sir, and I’ll agree with you
that the facts are different and can be
distinguished as you’re saying, but the way I
read what the court said is that the rights of
allocution are broad enough that it could include
a situation like this.
MJ: To include acquittal?
DC: Yes, sir.
MJ: I’m not going to allow it. She can mention she
went to court-martial. I’ll make specific
findings in that regard.
I find what we’re doing here is a direct
impeachment of the members’ determination. I
don’t allow that if I make a determination. I
have no problem with her saying that the others
got off easy and you can identify that in the
unsworn statement. You can -- and you can
identify the fact that Petty Officer Elliott went
to a court-martial, but I personally don’t
believe, and I don’t believe this particular case
constrains me in limiting that right regarding
the outcome of that other court-martial. Like I
said, had there been an outcome in the sentence
of the coconspirator I believe you’re on solid
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United States v. Sowell, No. 03-0688/NA
ground. I don’t see it in this case. I find
that that would be information that, under 403,
would be irrelevant and a direct impeachment of
the verdict of the members at this time and I’m
not going to allow it.
I further find that the case that you’ve cited to
me addresses disparate treatment by various
convening authorities or a particular convening
authority in addressing similar conduct and
treatment of those particular individuals. And
in this case you have full reign to discuss what
did or did not happen to Cormier and Schwey and
you have free reign to indicate that FC3 Elliott
went to a court-martial, but you’re not going to
provide information regarding the verdict.
DC: So, sir, if I understand your ruling correctly,
my client can mention in her unsworn statement
that FC3 Elliott went to a court-martial, period,
but cannot mention anything beyond that?
MJ: I am not going to allow the verdict to be
mentioned. And you can mention all you want
about Schwey not going to anything, but I think
the issue is disparate treatment and I don’t
think it’s been disparate. I find that the
notion of acquittal versus non-acquittal under
the same general, almost identical facts to be
inappropriate in a sentencing determination. I’m
not going to allow that.
The essence of the defense argument at trial was that
Elliott’s acquittal was “fair game” under Grill, as applied to
“disparate treatment” cases. There was no mention that it was
properly admissible to rebut the trial counsel’s finding
argument. In fact, there was no mention of any “rebuttal
theory” at trial, nor was such a theory recognized by any of the
judges of the Court of Criminal Appeals in two separate divided
opinions. The reason this rationale was not used even by the
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dissenting judges below was because this was not the context in
which the matter was litigated at trial. There is a good reason
why that position was not advocated at the trial level or relied
upon by the Court of Criminal Appeals. The argument of counsel
is not evidence. See, e.g., United States v. Robles-Ramos, 47
M.J. 474, 477 (C.A.A.F. 1998); United States v. Loving, 41 M.J.
213, 238 (C.A.A.F. 1994); United States v. Clifton, 15 M.J. 26,
29 (C.M.A. 1983). Moreover, the trial counsel’s bias argument
relates solely to a witness credibility issue relevant only to
the findings and not the sentence in the case. Further, the
disposition of the criminal case against Elliott does not
dictate or affect the standard that either party must meet in
order to make a good faith argument as to the co-conspirator’s
role and her bias in favor of Appellant’s acquittal. These
different standards of proof were recognized in Dowling v.
United States, 493 U.S. 342 (1990), in which the Court noted
that an acquittal would not preclude the admissibility of
evidence for impeachment purposes under a far less demanding
standard. An acquittal is based on the failure of proof beyond
a reasonable doubt, whereas, impeachment evidence is considered
for admission based on a preponderance standard. Regardless,
the trial counsel’s argument went to findings, and was not a
theme repeated during the Government’s sentencing case. Thus,
the acquittal and its mention by Appellant in her unsworn
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statement must be examined in the context of the evidence on
findings, as well as the matters presented by the Government in
their sentencing case.2
Examined on its own merits, the acquittal of a co-
conspirator is not relevant for sentencing purposes. “[I]t has
long been the rule that the sentences in other cases cannot be
given to the court-martial members for comparative purposes.”
United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180
(1959). Additionally, findings in other cases may not be used
to impeach the verdict. See, e.g., United States v. Pearson, 17
M.J. 149 (C.M.A. 1984); see also, United States v. Tobita, 3
C.M.A. 267, 12 C.M.R. 23 (1953)(appropriate for the military
judge to exclude testimony by the accused as to his denial of
the use of force after he had been convicted of rape); United
States v. Teeter, 16 M.J. 68, 73 (C.M.A. 1983)(permissible to
exclude appellant’s alibi testimony during sworn statement and
sentencing).
2
Rule for Courts-Martial (R.C.M.) 1001(b) “Matter to be
presented by the prosecution.” Given that R.C.M. 1001(a)(1)
provides that “[a]fter findings of guilty have been announced,
the prosecution and defense may present matter pursuant to this
rule to aid the court-martial in determining an appropriate
sentence,” and that both R.C.M. 1001(b) and (c) include
categories of information that are not evidence on the findings,
I am not willing to share the majority’s suggestion that such
“matters” may include trial counsel’s findings argument.
Similarly, I am unwilling to conclude that the Government should
be entitled under R.C.M. 1001(d) to offer evidence to rebut
defense counsel’s findings argument.
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The majority notes that “[w]hatever the general rule
regarding verdict impeachment and sentence comparison,
Appellant’s case is distinct. . . .” Sowell, __ M.J. at __ (4).
“Ordinarily such information [co-conspirator’s acquittal] might
properly be viewed in the context as impeaching the members’
findings.” Id. at __ (6). In this case, the very legitimate
comment on witness credibility made during argument on the
findings is converted to a basis upon which to permit mention by
Appellant in her unsworn statement of that which would otherwise
be prohibited during any part of the defense sentencing case,
even though this nascent “rebuttal theory” was not the argument
advanced at trial or considered by any military judge as a basis
upon which to permit mention of Elliott’s acquittal in
Appellant’s unsworn statement.
In this fashion, the majority not only announces a further
interpretation of R.C.M. 1001(c)(2)(C) -– which was the subject
at hand –- but, gratuitously reinterprets R.C.M. 1001(c)(1) and
(2) in their entirety, as well as R.C.M. 1001(d). Perhaps most
damaging is the majority’s revision of the relationship between
R.C.M. 919 and 1001(d) to suggest that the contents of argument
by either counsel on findings may now be the subject of rebuttal
evidence (or rebuttal unsworn statement) by either party during
the sentencing case. To the contrary, it would be hard to say
there was an abuse of discretion by the military judge when one
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notes that argument of counsel has not been considered, until
this time, as either evidence or testimony, and thus could never
be subject to rebuttal.
For all these reasons, and in particular for the air of
unpredictability that such decisions continue to inject into
military courtrooms around the world, I respectfully dissent.
9