United States v. Meghdadi , 2005 CAAF LEXIS 166 ( 2005 )

UNITED STATES, Appellee
v.
Shapour MEGHDADI, Private First Class
U.S. Army, Appellant
No. 04-0042
Crim. App. No. 20000029
United States Court of Appeals for the Armed Forces
Argued October 13, 2004
Decided February 11, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Jeremy W. Robinson (argued); Captain
Lonnie J. McAllister II, Captain Kathleen D. Schmidt, Lieutenant
Colonel Mark Tellitocci, and Major Sean S. Park (on brief);
Colonel Mark Cremin, Colonel Robert D. Teetsel, and Captain
Charlie A. Kuhfahl.
For Appellee: Captain Abraham F. Carpio (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).
Military Judges: Nancy A. Higgins and Jeffrey D. Smith
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Meghdadi, No. 04-0042/AR
Judge CRAWFORD delivered the opinion of the Court.
Before a general court-martial on January 4-7, 2000, and
contrary to his pleas, Appellant was convicted of conspiring to
distribute cocaine, twice distributing cocaine, and using
cocaine, in violation of Articles 81 and 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 881 and 912a (2000). The
offenses all occurred at Fort Lewis, Washington, in July and
August 1999. On September 27, 2000, prior to authentication of
the record of trial, and prior to the convening authority’s
action, Appellant requested a post-trial session under Article
39(a), UCMJ, 10 U.S.C. § 839(a) (2000), seeking inquiry into
alleged witness misconduct, or, alternatively, a mistrial or a
new trial. Lieutenant Colonel (LTC) Smith heard the evidence at
the post-trial session and denied the motion. The military
judge who presided at trial (LTC Higgins) had been reassigned.
After this hearing, on May 3, 2001, the convening authority
approved the sentence of a bad-conduct discharge, three years’
confinement, total forfeitures, and reduction to the lowest
enlisted grade.
On October 17, 2002, Appellant filed a joint “Brief on
Behalf of Appellant and Petition for New Trial” with the Army
Court of Criminal Appeals. The joint brief was rejected on
procedural grounds and Appellant did not file a separate
petition for new trial until August 20, 2003. On September 23,
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2003, the Court of Criminal Appeals affirmed the findings and
sentence and denied Appellant’s petition for new trial in a
short-form opinion. United States v. Meghdadi, ARMY 20000029
(A. Ct. Crim. App. Sept. 23, 2003). We granted review of the
first issue and specified issues two and three:
I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW
TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND
FRAUD ON THE TRIAL COURT?
II. WHETHER APPELLANT’S FAILURE TO FILE THE PETITION
FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD
ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT
OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER
THE PETITION?
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(A)
SESSION TO CONSIDER WHETHER APPELLANT SHOULD BE
GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY
DISCOVERED EVIDENCE AND FRAUD ON THE COURT?
For the reasons set forth below, we conclude that the
military judge erred in denying Appellant’s motion for a post-
trial session pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), to consider whether a new trial should be
granted. Accordingly, we need not reach Issues I and II.
FACTS
Appellant’s convictions for conspiring to distribute
cocaine and twice distributing cocaine rested almost entirely on
the testimony of Investigator Pereira (Pereira) of the Fort
Lewis, Washington, Criminal Investigation Command (CID), and
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Specialist Polanco (Polanco), an informant for the CID, who was
recruited by Pereira shortly after Pereira arrested Polanco for
drug offenses. At Appellant’s trial, Pereira testified that in
July 1999 he gave Polanco money to buy cocaine from Appellant.
After Appellant showed Polanco a baggie containing a white
powder, they went into a bathroom to avoid detection by casual
observers. Polanco emerged without the money and with a baggie
containing cocaine. Polanco corroborated Pereira’s testimony.
Additionally, Pereira was the only witness to the conspiracy and
the August 1999 off-post cocaine distribution at the home of
another soldier. Appellant’s fingerprints were not found on the
drug baggie allegedly purchased from him by Polanco, and the
drug baggie allegedly purchased by Pereira was not tested for
prints. In order for the members to have convicted Appellant of
the crimes with which he was charged, they must have believed
Polanco and, especially, Pereira. Pereira’s credibility was key
even when questioned by the members. The central theme of the
defense was that Pereira and Polanco had lied. Specifically,
the defense theory was that: (1) Pereira wanted to “make”
numerous drug cases in order to advance his career; (2) Pereira
had procured Polanco’s assistance by promising Polanco
assistance in his case, including that he would not go to jail
if he helped CID; and (3) Polanco had “set up” Appellant (and
others, by implication) so that CID agents would keep their
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promises. The findings establish that the members did not find
the defense theory sufficiently compelling to dissuade them from
determining, beyond a reasonable doubt, that Appellant was
guilty.
About three months after Appellant’s trial, consistent with
his pleas made pursuant to a pretrial agreement, Polanco was
convicted of two specifications of wrongfully distributing
cocaine and one specification of wrongfully selling Prozac. He
was sentenced to a bad-conduct discharge, reduction to E-1, and
a fine of $500. His sentence did not include confinement. In
that case, Polanco’s defense counsel asked the military judge to
find that he had been granted immunity by the actions and
promises of Pereira and other CID operatives. During the
hearing on that motion, the defense introduced a surreptitiously
recorded audiotape of a conversation, purportedly occurring
between Polanco and Pereira, after Polanco had been terminated
as a CID confidential source. Only Polanco and his defense
counsel knew of the recording prior to Polanco’s trial.
After Appellant’s defense counsel had obtained a copy of
Polanco’s record of trial, he made a “Motion For Post-Trial
39(a) Session,” for the “purpose of examining an allegation of
misconduct by . . . Investigator (INV) Luis Pereira.” This
motion requested several remedies, including “a new trial, based
on newly discovered evidence and fraud on the court,” and
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advanced a detailed factual exposition with supporting exhibits.
Appellant claimed that Pereira lied at Appellant’s trial by
testifying that: (1) he had not promised Polanco that Polanco
would not go to jail if he helped CID; (2) he had not told
Polanco that CID would assist him with his case if Polanco went
to work for CID; and (3) he had not met with Polanco after
Polanco had been terminated as a “registered source.” The
audiotape contains passages pertinent, in varying degrees, to
all three claims. Appellant contends that had the tape been
played at his trial, Pereira’s credibility would have been so
damaged that, when coupled with the inference that Polanco was
implicating as many people as possible in order to get CID’s
help in reducing his own charges, the results of Appellant’s
trial would have been different.
During Appellant’s trial, there was little evidence to
corroborate Pereira’s and Polanco’s testimony implicating
Appellant, and Pereira had made arguably evasive replies to
several questions on cross-examination. Further, Pereira had
admitted that he had not searched Polanco before the “controlled
buy” Polanco made from Appellant, arguably supporting
Appellant’s suggestion that Polanco may have brought the
“purchased” drugs with him. In acknowledging this failure,
Pereira explained that because both Polanco and Appellant were
present together when he arrived, such a search would have been
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impracticable. Although others were allegedly present at the
second sale, only Pereira testified to the details of that
transaction, which also yielded the only evidence of the
conspiracy of which Appellant was convicted. Although Pereira
testified that he was wearing a “wire” during this second
transaction, no recording was made due to an equipment
malfunction. Pereira testified that Appellant understood the
important details of the conversation conducted in Spanish and
English, notwithstanding that Appellant is Iranian and,
according to the testimony of his sister and a coworker, speaks
no Spanish.
As noted, LTC Smith had not observed either Polanco or
Pereira testify at trial. After considering the written
submissions of the parties and reading a translated,
unauthenticated transcript of the audiotape, LTC Smith denied
the defense motion for a post-trial Article 39(a) session, for a
mistrial, for a new trial, and to set aside two of the findings
of guilty.
DISCUSSION
We agree with the Government’s assertion that “[m]ilitary
service courts use their fact-finding powers to examine and
contrast the testimony at trial with other post-trial
submissions on motions for new trial.” Appellee’s Final Brief
at 9 (citing United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F.
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1998); United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)).
Because the Court of Criminal Appeals elected summary
affirmation, we lack the benefit of that court’s fact-finding
and rationale as to whether the military judge properly denied
Appellant’s request for a post-trial Article 39(a) session.
Within the constraints of Article 67, UCMJ, 10 U.S.C. § 867(2000), and consistent with our precedent, United States v.
Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996), we will pierce the
intermediate level of appellate review and examine the military
judge’s ruling directly.
Rule for Courts-Martial (R.C.M.) 905(h) addresses written
motions in general and provides, in part: “[u]pon request,
either party is entitled to an Article 39(a) session to present
oral argument or have an evidentiary hearing concerning the
disposition of written motions.” R.C.M. 1102(b)(2) and (d),
specifically addressing post-trial Article 39(a) sessions,
contain no similar language.
In United States v. Scaff, 29 M.J. 60 (C.M.A. 1989), we
removed any substantive distinction between a military judge’s
authority to consider post-trial issues under R.C.M. 1102(b)(2)
and R.C.M. 1210(f):
If evidence is discovered after trial which would
constitute grounds for a new trial under RCM 1210(f),
this might be considered a "matter which arises after
trial and which substantially affects the legal
sufficiency of any findings of guilty or the sentence"
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within the meaning of RCM 1102(b)(2). However, even if
the drafters of the Manual did not intend such an
interpretation of this Rule, we still are persuaded
that Article 39(a) of the Code empowers the military
judge to convene a post-trial session to consider
newly discovered evidence and to take whatever
remedial action is appropriate.
29 M.J. at 65-66 (footnote omitted).
We have long recognized that petitions for a new trial “are
generally disfavored,” United States v. Williams, 37 M.J. 352,
356 (C.M.A. 1993), and that “granting a petition for a new trial
in the military rests ‘within the [sound] discretion of the
authority considering . . . [that] petition.’” United States v.
Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (quoting United States v.
Lebron, 46 C.M.R. 1062, 1066 (A.F.C.M.R. 1973)). “This Court
has opined that requests for a new trial, and thus rehearings
and reopenings of trial proceedings, are generally disfavored.
Relief is granted only if a manifest injustice would result
absent a new trial, rehearing, or reopening based on proffered
newly discovered evidence.” Williams, 37 M.J. at 356.
Although we have not directly addressed the standard to be
applied in examining a military judge’s denial of a request for
a post-trial Article 39(a) session, we have held that “[w]hen an
appellant requests the convening authority to order a post-trial
Article 39(a) session, it is a matter for the convening
authority's sound discretion whether to grant the request,”
United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998), and
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that “[w]e review a military judge’s ruling on a petition for a
new trial for abuse of that discretion.” United States v.
Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002).
In denying a petition for a new trial, a military judge
abuses his discretion “if the findings of fact upon which he
predicates his ruling are not supported by evidence of record;
if incorrect legal principles were used by him in deciding this
motion; or if his application of the correct legal principles to
the facts of a particular case is clearly unreasonable.” United
States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). While this
standard is not facially applicable to the military judge’s
denial of Appellant’s request for an Article 39(a) session, the
fact that the request was made in the context of a motion for
new trial compels our consideration of this analytical framework
in assessing the military judge’s factual and legal conclusions.
In denying Appellant’s motion, the military judge
misapprehended the purpose of the Article 39(a) session, made
factual findings that are not supported by the record, applied
an erroneous legal standard, misperceived the evidentiary value
of the audiotape, and made no record of any weighing of the new
evidence against the evidence at trial, either on the merits or
in sentencing. Further, on an issue related entirely to witness
credibility, the military judge declined the opportunity
personally to hear the testimony of witnesses and, in the
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process, denied counsel the opportunity to develop that
testimony in an adversarial forum. Viewing these circumstances
in the aggregate, we conclude that the military judge’s reasons
and ruling were clearly untenable and that they constitute a
prejudicial abuse of discretion.
A. Purpose of the Requested Post-Trial Session Under
Article 39(a), UCMJ
After making factual findings, the military judge denied
the relief requested by Appellant:
A post-trial Article 39(a) session to examine
defense counsel’s allegations of misconduct by INV
Periera is not warranted. Other mechanisms, such as a
commander’s inquiry pursuant to R.C.M. 303 or an [Army
Regulation] 15-6 investigation, are the proper means
of conducting any such inquiry.
Despite Appellant’s citation to R.C.M. 1102 and 1210 in his
motion, the military judge failed to recognize that the primary
purpose of the requested inquiry into witness misconduct was to
examine Appellant’s request for a mistrial or new trial, rather
than to establish a basis for correction or discipline of the
witnesses themselves. This failure was compounded by his
erroneous view of both the facts and the rules of evidence.
B. The Military Judge’s Findings
Appellant disagrees with three aspects of the military
judge’s ruling: his conclusion that the defense could have
discovered the tape through due diligence; his conclusion that
the voice attributed to Pereira on Polanco’s tape did not tell
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Polanco that Polanco’s work for CID would help Polanco’s case;
and his conclusion that the remarks of Pereira on the tape could
not be construed as an admission that Pereira had promised
Polanco that he would not go to jail if he helped CID. For the
reasons discussed below, we agree with Appellant.
First, the evidence does not support the military judge’s
finding that Appellant’s defense counsel did not exercise due
diligence in ascertaining the existence of the audiotape. The
tape was made covertly by Polanco and delivered to Polanco’s
defense counsel, who secreted the tape until Polanco’s trial so
as to provide maximum effectiveness in impeaching Pereira during
those proceedings. At Polanco’s trial, Government counsel were
surprised by the existence of the tape. As noted in the defense
request for reconsideration, the issue of diligence was not even
contested by the Government in its opposition to Appellant’s
post-trial motion. In view of the military judge’s lack of
familiarity with the witnesses, his declination to observe their
demeanor, and the Government’s apparent concession of the issue,
there is little but conjecture to support the military judge’s
finding that “merely asking Polanco if he had any corroborating
evidence concerning his allegations against Periera would have
led to the discovery of the audiotape prior to Meghdadi’s court-
martial.”
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Second, the voice attributed to Pereira in the transcript
of the audiotape says to Polanco: “You contributed for the CID
to get so many drug dealers on the installation. If everybody
see whatever you have done good before the incident, all this
will help you.” Nonetheless, the military judge found that
“[n]owhere . . . does Pereira promise Polanco . . . that helping
CID will help Polanco’s case.” This finding appears
hypertechnical. The question is not whether the military judge
believed a promise had been made, but whether a rational trier
of fact could have found the newly discovered evidence of such a
promise “sufficiently believable to make a more favorable result
probable.” Brooks, 49 M.J. at 69. Regardless of whether the
military judge did more than merely rely on the absence of the
word “promise” from Pereira’s statement, he erred by concluding
that a rational trier of fact, after hearing this evidence
tested in an adversarial setting, could not have found that such
a promise had been made.
As to whether Pereira had promised Polanco that Polanco
would not go to jail, the military judge again applied an
incomplete, if not incorrect, standard. Finding that the
audiotape did not expressly contain such a promise, the military
judge failed to consider whether, together with Polanco’s
testimony, Pereira’s in-court denials, and other potential
inconsistencies by Pereira, the audiotape (a portion of the
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transcript of which is quoted below) could convince a rational
trier of fact that such a promise had indeed been made:
POLANCO: I’m going to do everything right, and my
woman is going to do everything okay. I don’t
want my mother to die.
PEREIRA: The truth is, I’m going to back up off my
word.
[Tape inaudible]
PEREIRA: You contributed for the CID to get so many
drug dealers on the installation. If everybody
see whatever you have done good before the
incident, all this will help you.
POLANCO: I hope so. You always told me that I would
not go to jail.
PEREIRA: Like I told the woman, you can say whatever
you want, but you’re not going to f*** with me.
If you come and say all those things, who do you
think they’re going to believe, you or me? You
mentioned about your mother, and I’m worried
because I have my mother also, and I don’t want
anything to happen, but everything is going to
get fine.
POLANCO: If none of you go and testify on my behalf,
even the General is going to find out about me.
I am begging you for my mother.
PEREIRA: I will do the impossible to show or talk on
your behalf based upon whatever you have done for
me.
Although not binding, the ruling of LTC Higgins, the
military judge in the courts-martial of both Polanco and
Appellant, who twice heard Polanco and Pereira testify and heard
the inflection and tone of voice used on the tape itself (noting
that the tape used a combination of Spanish and English), is
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United States v. Meghdadi, No. 04-0042/AR
informative. LTC Smith summarized LTC Higgins’s denial of
Polanco’s motion for a finding of immunity by saying “[t]he
military judge did not find that INV Pereira and other CID
agents promised Polanco he would not go to jail.” However, what
LTC Higgins actually said, in referring to Pereira and other CID
Drug Suppression Team members, was:
[t]hey made promises and secured the cooperation of a
registered source who performed on his end of the
bargain and they immediately began back pedaling when
they realized that the assures [sic] they had given
might be beyond their ability to comply with. They
further minimized their involvement in making these
assurances in their testimony before the court, and
that is to put it charitably.
While LTC Higgins’s determination of credibility is not
dispositive, it certainly serves to underscore the necessity for
a meaningful fact-finding inquiry and a detailed application of
correct legal standards.
C. Evidentiary Value of the Audiotape
The military judge erroneously concluded that the audiotape
would not be admissible. The military judge assumed that the
taped conversation would be offered only under Military Rule of
Evidence (M.R.E.) 608(b) and would be inadmissible as “extrinsic
evidence.” This conclusion inexplicably excludes both M.R.E.
608(c) and 613, neither of which requires the prior statement to
have been probative of truthfulness and neither of which
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prohibits introduction of qualifying extrinsic evidence under
these facts.
M.R.E. 608(c) permits introduction of evidence, extrinsic
or otherwise, tending to establish bias, prejudice, or motive to
misrepresent on the part of a witness:
Bias, prejudice, or any motive to misrepresent may be
shown to impeach the witness either by examination of
the witness or by evidence otherwise adduced.
The tape recording, taken together with other evidence in this
case, is relevant to a fact-finder’s determination of whether
Pereira and Polanco had motives to misrepresent: Pereira, for
professional gain and to prevent discovery of his arguably
unauthorized investigational techniques; and Polanco, to stay
out of jail and secure CID’s help with his case.
As to M.R.E. 613(b), the military judge concluded that
“defense counsel would have been stuck with the answers INV
Periera provided at Meghdadi’s court-martial, the very situation
that actually occurred.” This conclusion would be correct if
Pereira and Polanco admitted making their prior statements. If
they denied making the statements, or equivocated, M.R.E. 613
permits the extrinsic evidence of these statements. See, e.g.,
United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F. 1996);
United States v. Button, 34 M.J. 139, 140 (C.M.A. 1992). We
hold that Appellant has firmly established the potential
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impeachment value of the newly discovered statements and that
their value was not considered by the military judge.
D. Consideration of R.C.M. 1210(f)(3)
The military judge’s ruling fails adequately to address
Appellant’s claim that the fraud on the court allegedly
perpetrated by Pereira “had a substantial contributing effect on
. . . the sentence adjudged.” R.C.M. 1210(f)(3). By denying a
post-trial session at which Pereira could be confronted with
evidence of the audiotape by Appellant’s counsel, and by instead
relying on a translated, unauthenticated transcript, the
military judge denied himself the opportunity for meaningful
assessment of whether Peirera’s trial testimony comprised
perjury and, if so, whether the effect of the perjury
substantially contributed to the sentence. See United States v.
Hester, 26 M.J. 299, 299 (C.M.A. 1988)(“[W]e conclude that
perjured testimony from the two witnesses . . . . constituted a
fraud on the court . . . .”); United States v. Bourchier, 5
C.M.A. 15, 17 C.M.R. 15 (1954)(accused did not establish “proved
perjury”). This failure is particularly salient in view of
Appellant’s complaint that he was sentenced far more harshly
than Polanco; the fact that Pereira’s credibility was questioned
during his testimony for the Government, the defense, and the
court; and the fact that Pereira was the Government’s only
sentencing witness. Under such circumstances, evidence adverse
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to Pereira’s credibility deserved to be weighed against the
evidence at trial before the military judge concluded, sub
silentio, that the “fraud” did not have “a substantial
contributing effect on . . . the sentence adjudged.”
CONCLUSION
Called upon to examine a close question of credibility and
presented with an audiotaped conversation, largely in Spanish,
filled with innuendo, implication, and conversational nuance, a
military judge who had not presided at either trial declined
even to hear the witnesses testify, much less allow counsel to
develop that testimony.
The military judge would have done well to follow the
guidance of the military judge in Scaff, who noted:
The purpose of my granting [the] request for a
post-trial 39(a) session was to prevent a possible
miscarriage of justice by providing for the securing
of apparently extremely significant evidence at the
earliest possible time. This session, I felt, would
not only preserve the evidence, while still relatively
fresh in the witness’ memory, compared with the state
of her memory at some future . . . hearing [pursuant
to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 41(1967),] ordered by an Appellate Court, but would, in
all likelihood, result in less cost to the Government.
29 M.J. at 62 (citation omitted).
We express no opinion on the question of whether Appellant
is entitled to a new trial; however, we are satisfied that,
given the evidentiary posture in which the request was
presented, the failure to afford Appellant a forum in which to
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make his case was error that materially prejudiced Appellant’s
substantial trial rights.
The decision of the Army Court of Criminal Appeals is
reversed and the record of trial is returned to The Judge
Advocate General for action not inconsistent with this opinion,
to include a post-trial Article 39(a) session to consider
Appellant’s request for a new trial.
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