United States v. Palmer

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39445
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UNITED STATES
Appellee
v.
Andrew E. PALMER
Captain (O-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 21 June 2019
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Military Judge: L. Martin Powell.
Approved sentence: Dismissal, confinement for 21 days, and forfeiture
of $2,500.00 pay per month for 4 months. Sentence adjudged 23 January
2018 by GCM convened at Joint Base Charleston, South Carolina.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Amanda L.K. Linares, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, LEWIS, and SCHAG, Appellate Military Judges.
Judge SCHAG delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge LEWIS joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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SCHAG, Judge:
Appellant pleaded guilty, pursuant to a pretrial agreement (PTA), to one
charge and two specifications of wrongful use of a controlled substance (cocaine
and marijuana) in violation of Article 112a, Uniform Code of Military Justice
United States v. Palmer, No. ACM 39445
(UCMJ), 10 U.S.C. § 912a. 1 The military judge sitting alone sentenced Appel-
lant to a dismissal, confinement for 35 days, and forfeiture of $2,500.00 pay
per month for four months. Consistent with the terms of the PTA, the conven-
ing authority approved the sentence as adjudged, except that the term of con-
finement was reduced to 21 days.
Appellant raises on appeal the issue of whether his Fifth Amendment 2
rights were violated when the Government admitted the letter of reprimand
he received for failing to notify his command about his previous reckless driv-
ing conviction. We find no prejudicial error and affirm the findings and sen-
tence.
I. BACKGROUND
Preferral of the charge in this case occurred on 27 April 2017. The Air Force
Office of Special Investigations conducted a records check on Appellant. In mid-
May 2017, the check uncovered action taken against Appellant in 2013 by a
Georgia criminal court based on a charge of reckless driving arising from an
arrest for driving under the influence. Referral of the charge occurred on 8
June 2017. A day later, on 9 June 2017, Appellant’s commander issued a letter
of reprimand (LOR) addressing the underlying conduct from the 2013 arrest,
as well as Appellant’s failure to notify his command of the conduct and the
resulting civilian conviction.
At trial, the Defense objected to the LOR on the basis of improper pur-
pose, but the Defense did not assert the Fifth Amendment privilege against
self-incrimination as a basis for the objection. The Defense argued that a
LOR is a management tool used for rehabilitation or, put another way, for
improvement, correction, and instruction of subordinates. Instead, in this
case, the Defense asserted, the Government created and offered the LOR for
no rehabilitative purpose but rather only for aggravation in sentencing. Ap-
pellant’s commander issued an affidavit stating that he issued the LOR with
advice from the staff judge advocate because he believed the subject matter
needed to be addressed consistent with his experience as a commander and
for the purpose of rehabilitation. The military judge at trial admitted the
LOR over objection.
1All references in this opinion to the Uniform Code of Military Justice, Rules for
Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2016 ed.), pts. II, III.
2 U.S. CONST. amend. V.
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II. LAW
Issues of constitutionality and the interpretation of a service instruction
are subject to the de novo standard of review. United States v. Serianne, 69
M.J. 8, 10 (C.A.A.F. 2010) (citation omitted). In general, this court reviews a
military trial judge’s decision to admit or exclude evidence for an abuse of dis-
cretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “An abuse of discre-
tion occurs when the trial court’s findings of fact are clearly erroneous or if the
court’s decision is influenced by an erroneous view of the law.” Id. (citation
omitted).
“When an appellant does not raise an objection to the admission of evidence
at trial, we first must determine whether the appellant waived or forfeited the
objection.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omit-
ted). “Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (quoting United States
v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). We review forfeited issues for plain
error, whereas “a valid waiver leaves no error to correct on appeal.” Id. (citations
omitted). “Under a plain error analysis, the accused has the burden of demon-
strating that (1) there was error; (2) the error was plain or obvious; and (3) the
error materially prejudiced a substantial right of the accused.” United States
v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (internal quotation marks omitted)
(quoting United States v. Tunstall, 72 M.J. 191, 193–94 (C.A.A.F. 2013)).
Where a plain or obvious error is of a constitutional dimension, the test for
material prejudice is whether the error is harmless beyond a reasonable doubt.
See United States v. Jerkins, 77 M.J. 225, 229 (C.A.A.F. 2018) (citation omit-
ted); United States v. Tanner, 63 M.J. 445, 449 (C.A.A.F. 2006).
Under Rule for Courts-Martial (R.C.M.) 1001(b)(2), “evidence of any disci-
plinary actions” are potentially admissible at sentencing. “If the accused objects
to a particular document . . . as containing matter that is not admissible under
the Military Rules of Evidence, the matter shall be determined by the military
judge.” Id.; see also Air Force Instruction (AFI) 51-201, Administration of Mili-
tary Justice, ¶ 7.18 (8 Dec. 2017) (addressing the admissibility of a LOR). “Ob-
jections not asserted are waived.” R.C.M. 1001(b)(2); see also Mil. R. Evid.
103(a)(1) (requiring a timely objection and the specific ground for it). When
making an objection, it is not necessarily imperative “to present every argument
in support of an objection, but [the rules do] require argument sufficient to make
the military judge aware of the specific ground for objection.” United States v.
Reynoso, 66 M.J. 208, 210 (C.A.A.F. 2008) (quoting United States v. Datz, 61
M.J. 37, 42 (C.A.A.F. 2005)). Whether an accused has waived or merely forfeited
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United States v. Palmer, No. ACM 39445
an issue is a question of law we review de novo. Ahern, 76 M.J. 194 at 197 (citing
United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005)).
Departmental regulation outlines the authority for and purpose of LORs.
“Commanders . . . can issue administrative . . . reprimands. These actions are
intended to improve, correct, and instruct subordinates who depart from stand-
ards of performance, conduct, bearing, and integrity, on or off duty, and whose
actions degrade the individual and unit’s mission.” AFI 36-2907, Unfavorable
Information File (UIF) Program, ¶ 4.1 (26 Nov. 2014). The departmental regu-
lation that calls for self-reporting of a civilian criminal conviction is AFI 1-1,
Air Force Standards (7 Aug. 2012, Incorporating Change 1, 12 Nov. 2014). It
provides, “If you are above the pay grade of E-6, on active duty . . . and are
convicted of any violation of criminal law, you must report, in writing, the con-
viction to your first-line military supervisor within 15 days of the date of con-
viction.” AFI 1-1, ¶ 2.10.
The Fifth Amendment protects a person from being “compelled in any crim-
inal case to be a witness against himself.” U.S. CONST. amend. V. Compelled
statements that are “testimonial or communicative” are prohibited. Schmerber
v. California, 384 U.S. 757, 761 (1966). The UCMJ offers additional protection
pursuant to Article 31, which states, “No person subject to this chapter may
compel any person to incriminate himself . . . .” Article 31(a), UCMJ, 10 U.S.C.
§ 831(a).
III. ANALYSIS
The gravamen of Appellant’s contention at trial of improper purpose was
that the commander issuing the LOR had no intention to rehabilitate him, but
rather devised the LOR with the aim of creating additional sentencing evidence
for the purpose of enhancing punishment at trial. The Defense theorized that
the issuance of the LOR was not consistent with regulatory intent for use of an
LOR as a management tool and argued that the timing of the LOR—one day
after referral—supported their improper purpose argument. The Defense also
suggested improper purpose as the LOR was issued in an environment where
conviction of drug-related offenses was foreseeable, and mandatory administra-
tive discharge proceedings would necessarily follow a conviction. Notably, the
Defense’s objection focused on the reason for issuing the LOR, not the inherent
validity of the LOR for redressing the underlying conduct.
At trial, there was no mention of the Fifth Amendment as a basis for objec-
tion. However, on appeal, Appellant relies on United States v. Castillo to argue
the Air Force’s self-reporting regulation is improper because it does not contain
safeguards comparable to the Navy’s self-reporting regulation. See Castillo, 74
M.J. 160, 166 (C.A.A.F. 2015) (discussing Officeof the Chief of Naval Operations
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United States v. Palmer, No. ACM 39445
Instruction (OPNAVINST) 3120.32C, which prohibits disciplinary action for the
failure to self-report and for the underlying offense unless such action is based
solely on evidence derived independently of the self-report). Appellant argues
for Fifth Amendment protection because the Air Force’s regulation is punitive,
citing to Serianne, 69 M.J. at 11, which affirmed a military judge’s decision to
dismiss an Article 92 dereliction of duty charge based on a rationale of incon-
sistency with “superior competent authority.” However, in Serianne the court
notably declined to reach the constitutional question under the Fifth Amend-
ment as it applied to the reporting regulation at issue. Like at trial, Appellant
continues to assert the LOR was issued for an improper purpose, that is, to
increase court-martial punishment, but Appellant now links that argument to
a Fifth Amendment violation.
The arguments underpinning a supposed Fifth Amendment violation con-
nected to this LOR are quite different from arguments supporting an objection
that asserts the issuing commander did not have a lawful purpose in mind in
accordance with the departmental regulation. Unlike in Serianne, 69 M.J. at
11, Appellant was not charged with a criminal offense at the court-martial
based on a duty to report. As such, it is important to observe that in this case
there is no compulsory statement given by Appellant at issue with regard to
his civilian conviction that also underpins the charge at court-martial. There-
fore, we do not address here the question of the self-reporting regulation’s con-
stitutionality in the context of a charged offense. Rather, the LOR’s admissi-
bility as a sentencing phase exhibit is at issue here, and as mentioned, the
validity of the LOR itself as being based on a departmental regulation that
unconstitutionally calls for a self-report was not challenged at trial. The timing
of the LOR’s issuance alone is insufficient to demonstrate an improper purpose
or a violation that reaches a constitutional dimension. Accordingly, we find the
military judge did not abuse his discretion in admitting the LOR over the De-
fense’s objection that the LOR was created for an improper purpose. In addi-
tion, assuming Appellant forfeited and did not waive the issue at trial, see
Ahern, 76 M.J. at 197, under the circumstances, we find there was no plain or
obvious error with respect to violation of Appellant’s Fifth Amendment rights.
Even if there had been an error, plain or otherwise, we are convinced that
any error in this instance was harmless beyond a reasonable doubt and would
not have contributed to the sentence. See Jerkins, 77 M.J. at 229.
IV. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
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Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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