United States v. Nieto

UNITED STATES, Appellee
v.
Amador NIETO Jr., Corporal
U.S. Marine Corps, Appellant
No. 07-0495
Crim. App. No. 200600977
United States Court of Appeals for the Armed Forces
Argued December 12, 2007
Decided March 12, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
STUCKY and RYAN, JJ., joined. STUCKY, J., filed a concurring
opinion. BAKER, J., filed an opinion, in which ERDMANN, J.,
joined, concurring in the result.
Counsel
For Appellant: Major Brian L. Jackson, USMC (argued).
For Appellee: Lieutenant Justin E. Dunlap, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant Derek D.
Butler, JAGC, USN (on brief); Captain Roger E. Mattioli, USMC.
Military Judge: S. F. Day
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nieto Jr., No. 07-0495/MC
Chief Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of wrongful
use of cocaine, in violation of Article 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 912a (2000). The sentence
adjudged by the court-martial and approved by the convening
authority included a bad-conduct discharge, confinement for
three months, forfeiture of $350.00 pay per month for three
months, and reduction to the pay grade of E-1. The United
States Navy-Marine Corps Court of Criminal Appeals affirmed.
United States v. Nieto, No. NMCCA 200600977, 2007 CCA LEXIS 113,
2007 WL 1701863 (N-M. Ct. Crim. App. Apr. 5, 2007)
(unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT
THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR
WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK
HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED
THE MEMBERS WITH SUCH DETAILED FACTS ABOUT
APPELLANT’S CASE THAT THE TRIAL COUNSEL WAS IN
EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT
OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE,
ARGUMENT, AND INSTRUCTIONS.
In the present case, trial defense counsel did not object
to the questions posed to the members by the prosecution during
voir dire. For the reasons set forth below, we conclude that
the military judge did not commit plain error in permitting
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trial counsel to ask specific questions under the circumstances
of this case.
I. TRIAL PROCEEDINGS
After assembly of the court-martial, and prior to the
exercise of challenges against members of the panel, the
military judge provided an opportunity for voir dire examination
of the panel members. See Rule for Courts-Martial (R.C.M.)
912(d). The voir dire reflected the parties’ anticipation that
the prosecution would rely primarily on a positive urinalysis
test, and that the defense would rely primarily on Appellant’s
good military character and would seek to cast doubt on the
reliability of the urinalysis procedure.
A. GROUP VOIR DIRE
At the outset, the military judge asked a series of
questions during group voir dire to ensure that the members
would assess urinalysis evidence in a neutral manner, with
particular emphasis on ensuring that the members would not
automatically equate a positive urinalysis result with guilt.
The military judge then permitted each party to question the
members. See R.C.M. 912(d).
Trial counsel asked a number of questions during group voir
dire related to urinalysis and military character, as reflected
in the following excerpts from the record:
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Does any member believe that an accused should
not or cannot be convicted of wrongful use of
cocaine based on a urinalysis alone?
Negative response from all members.
. . . .
Do any members have any negative opinions about
the urinalysis testing program?
Negative response from all members.
Do any members disagree with the use of a
urinalysis to determine the presence of
contraband substance in the body?
Negative response from all members.
If the government proves to you beyond a
reasonable doubt that drugs were present in the
accused[’s] urine[,] would you be capable of
inferring that he knowingly used those drugs that
were found there? . . .
Affirmative response from each of the members.
. . . .
Would you be able to convict a Marine if the
evidence supports a conviction even if the Marine
has an otherwise unblemished service record?
Affirmative response from each of the members.
Does any member believe that a Marine with a good
record cannot commit a violation of the UCMJ?
Negative response from all members.
. . . .
Does any member believe that evidence [of] the
accused[’s] good military character by itself is
sufficient to out weigh [sic] other evidence of
the accused’s guilt?
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Negative response from the members.
. . . .
Do the members understand that you all determine
how much weight, if any[,] to give to the
evidence of good military character that is
presented by the defense in determining the
accused’s guilt or innocence, if that is
presented?
Affirmative response from the members.
Does any member believe that any technical error
in the collection process, no matter how small[,]
means that the urinalysis is per se invalid?
Okay affirmative response from each of the
members.
Defense counsel asked a series of questions regarding
urinalysis procedures during which all the members responded in
the negative as to whether they believed the urinalysis program
was infallible, responded in the affirmative to the proposition
that “zero tolerance” related to mandatory processing rather
than automatic discharge, and responded in the negative as to
whether a positive urinalysis test “is the absolute proof that
an individual knowingly used drugs[.]”
B. INDIVIDUAL VOIR DIRE
The record reflects detailed questioning of the members
during individual voir dire, including a number of interchanges
between trial counsel and individual members pertinent to the
present appeal.
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The following exchange occurred during the voir dire of
Chief Warrant Officer 3 (CWO3) M:
TC: You believe that any type of deviation from
the SOP automatically invalidates that[,] there
is no weight to be assigned to it, you didn’t
follow procedures so therefore you can’t rely on
it, it is unreliable evidence?
MBR (CWO3 [M]): Any time you have a gap in the
chain, sir[,] it makes it a weak link. So it is
possible that any part of that gap could have
been tampered with. I would like to hear the
evidence of why there is a gap there, and based
off of that evidence I could make a better
determination of whether it is valid or not
valid.
TC: Okay. So you are talking about custody
issues when you talk about the collection
process?
MBR (CWO3 [M]): Yes, sir.
TC: What if it was something else[?] What if
there was a particular space where someone didn’t
initial, where other wise [sic] they would have?
Is that the sort of procedural error that you
think would invalidate a urinalysis test per se?
MBR (CWO3 [M]): Only if it is a standard
operating procedure for that point in time, yes,
sir.
TC: So if there were some body [sic] like the
coordinator who was supposed to initial the
bottle, and he didn’t, that would necessarily
mean that you couldn’t rely on that sample that
was collected because he didn’t fulfill the
duties he should have?
MBR (CWO3 [M]): Yes, sir.
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Trial counsel asked similar questions during the individual
voir dire of CWO2 C. In particular, the following exchange
occurred:
TC: [W]ould you be able to look at and assess if
there were any deviations from the SOP, and weigh
them to factor whether or not this is a reliable
test that we have in this case?
MBR (CWO2 [C]): Yes, sir.
TC: And so it wouldn’t necessarily be per se
invalid if the coordinator didn’t put his
initials on the bottle[,] let’s say. If it came
back to the coordinator [and] the accused brought
it back to the table, but the coordinator didn’t
put his initials on the bottle before it went
back into the box. Would that be a violation
that you couldn’t over look [sic]? No matter
what[,] that is an invalid test in your mind?
MBR (CWO2 [C]): In that case with the initials,
no.
During the individual voir dire of Staff Sergeant (SSgt) R
and Corporal (Cpl) M, trial counsel asked similar questions
regarding urinalysis procedures. Both members agreed with the
statement that such a deviation would not necessarily render the
test invalid.
Sergeant (Sgt) Z offered a different response, as reflected
in the following colloquy:
TC: [Is it] your opinion [that] any violation of
the SOP regarding the collection process, no
matter what it is[,] that automatically means
that you can’t rely on the results of that test?
MBR (Sgt [Z]): Yes, sir.
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TC: Would it make any difference what sort of
violation we are talking about?
MBR (Sgt [Z]): I believe that is something that
seriously needs to be perfect, sir.
TC: All right. So if that included a
coordinator, for instance, not initialing the
bottle when he should have, that, in your mind,
is a deviation that seriously jeopardizes the
reliability of the results?
MBR (Sgt [Z]): Yes, sir.
Subsequently, in response to questioning by defense
counsel, Sgt Z agreed that he could consider all the evidence,
if so instructed, before making a decision regarding the impact
of an error in the collection process.
During individual voir dire questioning, Cpl L expressed a
similar belief that a coordinator’s failure to initial a urine
bottle would invalidate a positive urinalysis test. After
asking several unrelated questions, trial counsel returned to
the issue of deviations in urinalysis procedures:
TC: If the evidence showed that the accused is
the one who brought back a bottle and he put the
label on the bottle himself, and verified it was
his social security number, that sort of thing,
and he put his initials on that label, and then
he himself put the tape on the bottle and he
initialed the top of the tape, and he put the
sample into the box himself and took out his ID
card. Would the fact that the coordinator in
that process hadn’t picked up the bottle himself
and initial [sic] it. . . . be enough to . . .
throw out the results of that test, that couldn’t
support a conviction, you couldn’t find the
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accused guilty if that was the error that
occurred here? Is that true or not?
MBR (Cpl [L]): Not true because he signed for
it.
TC: The accused?
MBR (Cpl [L]): The accused signed saying that it
was his urine, sir.
In addition, Cpl L agreed that he would consider all the
evidence, notwithstanding an error in the collection procedures.
C. CHALLENGES
The prosecution challenged CWO3 M and Sgt Z for cause on
the grounds that their responses indicated an inflexible
attitude with respect to processing errors, among other grounds.
After considering defense objections to the challenges, the
military judge granted the prosecution’s challenge as to Sgt Z
and denied it as to CWO3 M. Subsequently, the prosecution
exercised a peremptory challenge against CWO3 M.
Only two members were challenged by the defense, both of
whom were removed from the panel. The military judge granted
the defense challenge to Cpl M on the grounds of her personal
and professional relationship with various witnesses, and the
defense exercised a peremptory challenge against Cpl L.
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II. DISCUSSION
Before this Court, Appellant contends that the prosecution
improperly sought to obtain from the panel members a commitment
to convict Appellant based upon a hypothetical set of facts,
that the commitment questions violated his right to be tried by
an impartial panel, and that the military judge erred by
permitting these questions. In the absence of objection by the
defense at trial, we apply a plain error standard of review.
United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007). To
establish plain error, an appellant bears the burden of
demonstrating “(1) an error was committed; (2) the error was
plain, clear, or obvious; and (3) the error resulted in material
prejudice to an appellant’s substantial rights.” Id. (citing
United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998));
see Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
Voir dire provides an opportunity to explore whether a
member possesses partiality or otherwise is subject to
challenge, and the military judge has broad discretion in the
conduct of voir dire. See United States v. Belflower, 50 M.J.
306, 309 (C.A.A.F. 1999); United States v. Jefferson, 44 M.J.
312, 318-19 (C.A.A.F. 1996); R.C.M. 912(d) Discussion. As a
general matter, hypothetical questions provide a permissible
means of exploring potential grounds for challenge. See United
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United States v. Nieto Jr., No. 07-0495/MC
States v. Reynolds, 23 M.J. 292, 293-94 (C.M.A. 1987); United
States v. Heriot, 21 M.J. 11, 12-14 (C.M.A. 1985).
Although this Court has addressed challenges for cause
based upon answers provided by prospective members to
hypothetical questions during voir dire, see, e.g., Reynolds, 23
M.J. at 294, we have not heretofore addressed the scope of
permissible questioning in this regard. Among the few courts
that have addressed this question, a number have held that
certain hypothetical questions are impermissible if they seek to
obtain a commitment from jurors to agree to decide the case in a
particular way upon a hypothetical set of facts. See, e.g.,
Hobbs v. Lockhart, 791 F.2d 125, 129-30 (8th Cir. 1986);
Hutcheson v. State, 213 S.W.3d 25, 32 (Ark. Ct. App. 2005);
State v. Henderson, 574 S.E.2d 700, 705-06 (N.C. Ct. App. 2003);
Thompson v. State, 2007 OK CR 38, ¶ 33, 169 P.3d 1198, 1209. A
number of other courts have adopted a broader prohibition,
precluding questions that ask jurors to commit themselves to
resolving a particular aspect of the case in a specific way
based upon a hypothetical set of facts. See, e.g., State v.
Ball, 824 So. 2d 1089, 1110 (La. 2002); Burkett v. State, 179
S.W.3d 18, 31 (Tex. App. 2005). Neither party has cited to us
decisions from the federal civilian courts that would indicate a
generally applicable standard for considering this question in
the trial of criminal cases in federal district courts. Cf.
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Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2000) (referring to
“the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts” as the foundation for similar rules in the
military justice system).
In short, at the time of trial, the case law from this
Court did not preclude trial counsel’s questions, generally
applicable federal criminal law did not provide guidance on
point, and only a handful of state cases addressed this matter.
In that context, we conclude that Appellant has not carried his
burden of demonstrating that the military judge committed an
error that was “plain” or “obvious” in permitting the trial
counsel to ask the hypothetical questions at issue in the
present case.
We emphasize that the case before us involves the scope of
permissible questions on voir dire, not the ruling of a military
judge on a challenge for cause. If, for example, a question
prompted a panel member to make a statement demonstrating
prejudgment of the case, that would present a question regarding
a challenge for cause. See R.C.M. 912(f)(1)(N). In the present
case, however, defense counsel not only permitted the trial
counsel’s questions to proceed without objection, but also
offered no challenge to any of the members who rendered the
findings or sentence. On appeal, Appellant has not contended
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United States v. Nieto Jr., No. 07-0495/MC
that trial defense counsel erred in not offering a challenge for
cause or that the military judge erred in permitting any member
to sit on the panel.
To the extent that Appellant asks us to rule that the
questions at issue were impermissible, we are presented with a
question that not only is a matter of first impression with this
Court, but also a matter on which there is little guidance from
other federal courts. Particularly in light of the fact-
intensive, case-specific nature of the issue raised by
Appellant, it is an issue that would benefit from a well-
articulated objection at trial, as well as findings of fact and
conclusions of law by the military judge. Absent the
development of such a record in the case before us, we decline
to conclude that the military judge committed plain error.
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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STUCKY, Judge (concurring):
Trial counsel posed voir dire questions using facts from
Appellant’s case to obtain from court members commitments that
they would view those facts in a particular way. While I agree
with the majority’s disposition of the case, I write separately
to emphasize that actions like those of the trial counsel are
disfavored, if not necessarily outright error. As we cautioned
practitioners in United States v. Tippit:
[I]t is appropriate to allow considerable leeway to
counsel in the voir dire examination of court members
as they seek to ascertain whether a challenge for
cause should be asserted. However, latitude for
counsel in propounding questions to court members
about their reactions to hypothetical situations
should not become an invitation to reversible error.
9 M.J. 106, 107-08 (C.M.A. 1980) (per curiam). More recently,
we sympathized “‘with the plight of court-martial members who on
voir dire are asked hypothetical questions.’” United States v.
Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000) (quoting United States
v. Heriot, 21 M.J. 11, 13 (C.M.A. 1985)).
This Court has long held it is error to pose hypothetical
questions involving case-specific facts to seek a commitment
regarding a punitive discharge. United States v. Reynolds, 23
M.J. 292, 294 (C.M.A. 1987). As we said in Reynolds, “[n]either
the Government nor the accused is entitled to a commitment from
the triers of fact about what they will ultimately do.” Id.(holding that hypothetical voir dire questions asking members to
United States v. Nieto Jr., No. 07-0495/MC
commit themselves to an appropriate sentence was error); accord
Rolle, 53 M.J. at 191; United States v. Rockwood, 52 M.J. 98,
106 (C.A.A.F. 1999); United States v. Small, 21 M.J. 218, 219
(C.M.A. 1986). Although the questions posed in Appellant’s case
did not seek commitment on a particular sentencing element, they
did seek commitment on how the member questioned would view
certain evidence.
Although I would find error in this case, I agree with the
majority that the error is not plain or obvious. See United
States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006) (holding
that there is no plain error unless an appellant can show the
error was plain or obvious and that the error materially
prejudiced the appellant’s substantial rights). While this
Court has addressed the validity of voir dire questions seeking
commitment on an appropriate sentence, this Court has not
clearly addressed whether it is error to seek commitment on a
disputed factual matter.1 I agree with the majority that the
1
One possible exception is United States v. Carver, 6 C.M.A.
258, 19 C.M.R. 384 (1955). In Carver, the law officer released
a member after the member apparently became disturbed by trial
counsel’s questioning of a defense expert witness. 6 C.M.A. at
264, 19 C.M.R. at 390. Trial counsel was allowed to voir dire
the member mid-trial. Id. We held it was error to permit
questions designed to discover the weight the member would give
to various expert witnesses as the questions asked for a
commitment on how he would decide the issues before hearing
testimony or receiving evidence. 6 C.M.A. at 267, 19 C.M.R. at
392. Given the unusual facts of this case, I do not see it as
clearing the murky waters in this area.
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decisions discussing this issue, in both this Court and in other
federal courts, do not provide clear guidance. Error cannot be
plain or obvious if the law is unsettled on the issue at the
time of trial and remains so on appeal. United States v.
Garcia-Rodriguez, 415 F.3d 452, 455-56 (5th Cir. 2005); United
States v. Diaz, 285 F.3d 92, 96 (1st Cir. 2002). Nor is an
error “plain” if Appellant’s theory requires “the extension of
precedent.” United States v. Hull, 160 F.3d 265, 272 (5th Cir.
1998).
Thus, I would find the use of voir dire questions asking
for a commitment using case-specific facts to formulate
hypothetical questions was error in this case, but the error was
not so plain or obvious that it relieves Appellant of his
failure to preserve the issue on appeal. For this reason, I
concur in affirming the decision of the United States Navy-
Marine Corps Court of Criminal Appeals.
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BAKER, Judge, with whom ERDMANN, Judge, joins (concurring
in the result):
The Court’s opinion concludes that Appellant has not met
his burden of demonstrating plain error. I agree, albeit for a
different reason. As a separate matter, I believe this Court
should, in light of this case, offer further guidance to the
field distinguishing between proper and improper hypothetical
and commitment questions during voir dire, although for reasons
stated below this is admittedly difficult to do.
The Court discusses two tracks in state case law on the
subject of hypothetical questions during voir dire. The first
track prohibits hypothetical questions intended to induce juror
commitments on facts that are verdict dispositive. The second
track addresses questions intended to induce juror commitments
on specific facts.
It is not clear how different the two tracks really are.
One problem in this case is that under either track the
questions asked by trial counsel would appear to be
impermissible efforts to preview the members’ reaction to
evidence yet to come. Trial counsel asked prospective members
whether a technical error in the collection process would per se
invalidate a urinalysis. This is a general question intended to
discern potential bias and fixed and inflexible views regarding
urinalysis processing generally. However, with some members
United States v. Nieto Jr., No. 07-0495/MC
trial counsel went further. In the case of Chief Warrant
Officer 2 (CWO2) C, for example, he asked:
And so it wouldn’t necessarily be per se invalid if the
coordinator didn’t put his initials on the bottle let’s
say. If it came back to the coordinator the accused
brought it back to the table, but the coordinator didn’t
put his initials on the bottle before it went back into the
box. Would that be a violation that you couldn’t overlook?
Whether viewed as hypothetical, commitment, or case specific in
nature, trial counsel’s questions about urinalysis processing
accomplished the same objective, because Appellant’s case hinged
on any doubts he might generate regarding the urinalysis
procedures, and in particular with regard to the labeling of the
bottle.1 Thus, on this point, I think Appellant has the better
argument. However, such insight comes from reading the record
backward, a benefit the military judge did not have at the time.
1
Trial counsel’s “military character” question put to all the
potential members was also problematic:
Does any member believe that evidence [of] the accused[’s]
good military character by itself is sufficient to out
weigh [sic] other evidence of the accused’s guilt?
Negative response from the members.
This question asked the members to commit to an incorrect
statement of the law pertaining to the reasonable doubt
standard, which was arguably plain and obvious at the time.
However, the military judge later instructed the members that
evidence of good military character and character for
truthfulness could be enough to create reasonable doubt -- and
we assume that the members followed the military judge’s
instructions. Therefore, if there was error in not immediately
addressing the question posed, it was not prejudicial.
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I would not find plain error in this case because at the
time the questions were asked, the military judge did not have
the benefit of knowing how the evidence yet to be introduced
would relate to the theories of the parties. Therefore, while
it may be obvious in retrospect to see how the questions
involved were more than hypothetical and did more than test for
bias, I do not find error in the military judge not seeing this
at the time the questions were asked. Where the questions
concerned might reasonably have been intended to test for bias
as well as potentially to test the real facts in issue on the
potential members, the military judge did not have a sua sponte
duty to look behind the questions asked.
In the voir dire context, it is the counsel who will have
the better feel for the coming evidence rather than the military
judge. Therefore, it is generally counsel’s objection and not
the military judge’s speculation that is critical in detecting
the improper question. Counsel, rather than the military judge,
will have a better feel during voir dire as to whether
hypothetical questions are truly hypothetical and intended to
test for bias, or whether they are in reality (and in disguise)
commitment questions intended to preview attitudes toward
specific evidence. While not all commitment questions are
improper, some questions surely are. Therefore, appellate
courts might express concern but it is problematic to draw
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bright line rules. The same is true of hypotheticals.
Hypotheticals are surely useful in testing for and detecting
bias. However, they can also be used to preview case specific
facts and to warm up the jury.
For these reasons, military judges must have broad
discretion in overseeing voir dire questioning. This
discretion, however, should extend to looking behind the
questions asked, especially where questions suggest an effort at
securing commitments to case related “hypothetical” facts.
Thus, in instances where a military judge can reasonably foresee
the direction of the case, hypothetical factual questions like
those presented in this case might indeed present obvious
attempts to commit the members. In such cases, a military judge
would err in not testing the basis for such questions.
4