United States v. Thompson

UNITED STATES, Appellee
v.
Benjamin D. THOMPSON, Airman Basic
U.S. Air Force, Appellant
No. 05-0575
Crim. App. No. 35274
United States Court of Appeals for the Armed Forces
Argued April 18, 2006
Decided June 20, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Lieutenant Colonel Mark R. Strickland, and
Major Sandra K. Whittington (on brief).
For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).
Military Judge: Kurt D. Schuman
This opinion is subject to revision before final publication.
United States v. Thompson, No. 05-0575/AF
Judge ERDMANN delivered the opinion of the court.
Airman Basic Benjamin D. Thompson was charged with three
marijuana-related offenses, false swearing, and contributing to
the delinquency of a minor, violations of Articles 112a and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 934
(2000). Thompson entered pleas of not guilty and, at a general
court-martial with members, was convicted of wrongful use,
possession and distribution of marijuana in violation of Article
112a, UCMJ. He was sentenced to a bad-conduct discharge and one
year of confinement. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Thompson, No. ACM 35274, 2005 CCA LEXIS 145, at *16, 2005 WL
1017616, at *6 (A.F. Ct. Crim. App. Apr. 29, 2005)
(unpublished). We granted review of an issue questioning
whether the military judge erred by admitting evidence of
uncharged misconduct.1
To determine whether evidence of uncharged acts of
misconduct is admissible under Military Rule of Evidence
(M.R.E.) 404(b), this court looks to whether that evidence “is
offered for some purpose other than to demonstrate the accused’s
1
On January 4, 2006, we granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN
ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT.
2
United States v. Thompson, No. 05-0575/AF
predisposition to crime . . . .” United States v. Castillo, 29
M.J. 145, 150 (C.M.A. 1989). Thompson contends that two
pretrial statements that contained information about his
preservice drug use were erroneously admitted by the military
judge in that they served no legitimate purpose, merely painted
him as an habitual drug user, and were prejudicial to his
substantial rights. We conclude, as did the Court of Criminal
Appeals,2 that the military judge abused his discretion in
admitting this evidence of preservice drug use but that the
error was not prejudicial.
FACTS
Thompson had been utilized as a confidential informant for
the Air Force Office of Special Investigations (AFOSI) from
September 18, 2001 until January, 2002. Thompson had provided
information only three times in response to over thirty taskings
from AFOSI. As a result, he was interviewed by AFOSI because it
was believed that he was “becoming basically uncontrollable” as
a confidential informant and that he was not disclosing drug
involvement. During this interview, Thompson indicated that he
had been in approximately twenty-five situations in which he
simulated smoking marijuana, and that on two of those occasions
62 M.J. 436 (C.A.A.F. 2006).
2
United States v. Thompson, No. ACM 35274, 2005 CCA LEXIS 145,
at *8-*12, 2005 WL 1017616, at *2-*4 (A.F. Ct. Crim. App. Apr.
29, 2005) (unpublished).
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United States v. Thompson, No. 05-0575/AF
he inhaled marijuana smoke.
The Government’s case-in-chief consisted of testimony from
a number individuals with whom Thompson had engaged in various
drug-related activities and a forensic toxicologist who
testified as an expert on the psychological effects of
marijuana. At the conclusion of the Government case, the
defense rested.
During a session held pursuant to Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000), Thompson objected to the admissibility
of three pretrial statements. Those statements involved: (1)
admissions to Airman JB about Thompson’s use of marijuana “all
the time back home”; (2) a statement to a military dependent,
DG, about Thompson’s preservice practice of selling marijuana;
and (3) a statement to DG about Thompson’s use of marijuana in
high school. Thompson challenged these statements as
inadmissible uncharged misconduct under M.R.E. 404(b) and
claimed that their prejudicial impact substantially outweighed
their probative value under M.R.E. 403.
The military judge noted that the first and third
statements reflected “knowledge of marijuana use” and “knowledge
and absence of mistake.” The military judge permitted testimony
about the statements to DG and Airman JB relating to preservice
use of marijuana. The military judge reserved ruling on the
admissibility of the statement to DG about selling marijuana.
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United States v. Thompson, No. 05-0575/AF
Later, the military judge sustained Thompson’s objection to that
statement after conducting a balancing test under M.R.E. 403.
DISCUSSION
As he did before the Court of Criminal Appeals, Thompson
challenges the ruling of the military judge admitting his two
statements about preservice drug use under M.R.E. 404(b). He
makes this claim despite the fact that he received a favorable
ruling on that precise question from the Court of Criminal
Appeals.3 Thompson also claims that the Court of Criminal
Appeals erred in finding that the military judge’s error in
admitting the two statements was harmless. The Government
responds that the military judge did not abuse his discretion by
admitting the two statements and that, even if he did err, the
error was harmless in light of the overwhelming evidence of
guilt, the limiting instructions, and the fact that no special
emphasis was placed upon this uncharged misconduct during the
Government’s case.
3
Although Thompson prevailed at the Court of Criminal Appeals on
the question of whether the military judge erred in admitting
the two statements, he has again challenged the military judge’s
admissibility ruling before this court. Absent such a challenge
or certification of that ruling by the Government pursuant to
Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. §
867(a)(2) (2000), we would conduct a “law of the case” analysis
to determine whether that issue was properly before the court.
See United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002);
United States v. Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994).
However, in light of Thompson’s specific challenge to the
military judge’s decision, we will proceed to review whether the
military judge erred in admitting the statements.
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United States v. Thompson, No. 05-0575/AF
Military Rule of Evidence 404(b) provides:
Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake
or accident, . . . .
The test for admissibility of uncharged acts is “whether the
evidence of the misconduct is offered for some purpose other
than to demonstrate the accused’s predisposition to crime and
thereby to suggest that the factfinder infer that he is guilty,
as charged, because he is predisposed to commit similar
offenses.” Castillo, 29 M.J. at 150; see also United States v.
Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998); United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997).
To determine whether uncharged acts are admissible under
M.R.E. 404(b), this court uses the three-part test from United
States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). United
States v. McDonald, 59 M.J. 426, 429 (C.A.A.F. 2004); United
States v. Diaz, 59 M.J. 79, 94 (C.A.A.F. 2003). The first prong
of the test asks whether the evidence reasonably supports a
determination by the factfinder that an appellant committed the
prior misconduct. Reynolds, 29 M.J. at 109 (citing United
States v. Mirandes-Gonzalez, 26 M.J. 411 (C.M.A. 1988)). The
standard required to meet this first prong is low. United
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United States v. Thompson, No. 05-0575/AF
States v. Dorsey, 38 M.J. 244, 246 (C.M.A. 1993). The second
prong of the test asks what fact of consequence is made more or
less probable by the existence of this evidence. Reynolds, 29
M.J. at 109 (citing M.R.E. 401; United States v. Ferguson, 28
M.J. 104, 108 (C.M.A. 1989)). The final prong of the test calls
for balancing under M.R.E. 403. Id. We review a military
judge’s decision to admit evidence for abuse of discretion and
will not overturn that ruling unless it is “‘arbitrary,
fanciful, clearly unreasonable,’ or ‘clearly erroneous,’” or
influenced by an erroneous view of the law. McDonald, 59 M.J.
at 430 (quoting Miller, 46 M.J. at 65).
The evidence meets the first prong of the Reynolds test.
Thompson’s admissions to DG and Airman JB reasonably support a
finding that Thompson used marijuana before he entered the Air
Force. However, this evidence fails the second prong of the
test for uncharged misconduct. Even though M.R.E. 404(b) is a
rule of inclusion,4 the evidence must be relevant to a fact in
issue other than an accused’s character or predisposition to
commit the charged offenses. McDonald, 59 M.J. at 429 (quoting
Huddleston v. United States, 485 U.S. 681, 686 (1988)). Thus,
“evidence of prior drug use is not inadmissible per se at a
court-martial. Mil.R.Evid. 404(b) permits evidence of ‘other
crimes, wrongs, or acts’ to prove facts other than a person’s
4
United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002).
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United States v. Thompson, No. 05-0575/AF
character, such as ‘intent, knowledge, or absence of mistake or
accident.’” United States v. Tyndale, 56 M.J. 209, 212
(C.A.A.F. 2001). The express purposes for which the military
judge admitted this evidence of prior drug use were to show
knowledge of marijuana use and the absence of mistake.
We agree with the Court of Criminal Appeals that Thompson
did not raise the issues of lack of knowledge or mistake of
fact. Thompson, 2005 CCA LEXIS 145, at *8, 2005 WL 1017616, at
*3. While the defense counsel did refer to Thompson as “young”
and “naive” in his opening statement, that description of
Thompson was never tied to any evidence showing that Thompson’s
alleged naiveté related to marijuana or caused him to
misapprehend any fact of consequence. Indeed, nothing in the
record suggests that Thompson was unknowledgeable when it came
to the nature, effects or use of marijuana. Nor is there
evidence in the record of any mistake, whether it be a mistake
rising to the level of a defense or a mistake that the defense
could argue to mitigate Thompson’s criminal culpability. As
noted by the Court of Criminal Appeals, the defense focused on
the credibility of those who testified about Thompson’s
marijuana use and on the pressures and fears of detection he
faced as a confidential informant that caused him to act as he
did to conceal that status. Thompson, 2005 CCA LEXIS 145, at
*8-*9, 2005 WL 1017616, at *3. Because the matters for which
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United States v. Thompson, No. 05-0575/AF
the military judge admitted the uncharged acts evidence were not
in issue, that evidence served no relevant purpose and fails the
second prong of the Reynolds test. We conclude that the
military judge abused his discretion by admitting the statements
about preservice drug use.
Having found error, we must test for prejudice. Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000). We conduct a de novo
review to determine whether a nonconstitutional error in
admitting evidence is prejudicial to an accused’s substantial
rights, and we consider four factors: (1) the strength of the
Government’s case; (2) the strength of the defense case; (3) the
materiality of the evidence in question; and (4) the quality of
the evidence in question. United States v. Berry, 61 M.J. 91,
98 (C.A.A.F. 2005); McDonald, 59 M.J. at 430-31. We conclude
that Thompson was not prejudiced.
Although the Government’s case consisted largely of
testimony from other drug users or accomplices, that testimony
presents a telling picture of Thompson’s frequent involvement
with marijuana. Thompson’s effort to undermine the credibility
of his accomplices was not persuasive. In addition, their
testimony as to the unlawful nature Thompson’s drug activity was
enhanced by the fact that Thompson rarely provided any
information about drug activity when he was tasked to do so by
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United States v. Thompson, No. 05-0575/AF
the AFOSI. The whole of the Government’s case against Thompson
was compelling.
In contrast, the defense case was markedly less
substantial. Not only was the attack on the credibility of the
accomplice testimony unsuccessful, the asserted duress defense
was de minimus.
The defense of duress applies when the
accused has a (1) “reasonable apprehension”
that (2) “the accused or another innocent
person” would (3) “immediately” suffer death
or serious bodily injury if the accused “did
not commit the act.” Id. A “reasonable
apprehension” does not exist “if the accused
has any reasonable opportunity to avoid
committing the act without subjecting
[himself] or another innocent person to the
harm threatened[.]”
United States v. Vasquez, 48 M.J. 426, 430 (C.A.A.F. 1998)
(quoting Rule for Courts-Martial 916(h)) (alterations in
Vasquez). Although the military judge did instruct on the
defense of duress, the evidence left to speculation the nature
of the physical harm threatened and there was virtually no
evidence about whether Thompson had a reasonable opportunity to
avoid the harm by doing something other than actually inhaling
marijuana.
Finally, as to the materiality and quality of the evidence,
we conclude that the actual worth of the statements about
preservice drug use was minimal. Each statement was mentioned
but once during the Government’s case-in-chief and during
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United States v. Thompson, No. 05-0575/AF
argument they were mentioned only in trial counsel’s rebuttal
argument. Neither statement played a role of major significance
in the prosecution of the case against Thompson. A limiting
instruction given by the military judge precluded the members
from considering this evidence on any issue other than
“knowledge on the part of the accused on how to use marijuana
and to prove that the accused intended to use marijuana.”
If the members determined that Thompson did in fact inhale
marijuana, neither knowledge nor intent was in issue. Thus,
under the instructions of the military judge, this evidence was
not helpful to the Government’s case. Further, the members were
told they “may not consider this evidence for any other purpose,
and you may not conclude from this evidence that the accused is
a bad person or has general criminal tendencies and that he,
therefore committed the offenses charged.” We presume this
instruction was followed. United States v. Taylor, 53 M.J. 195,
198 (C.A.A.F. 2000); United States v. Holt, 33 M.J. 400, 408
(C.M.A. 1991). We therefore conclude that this error was
harmless and had no prejudicial impact on Thompson’s substantial
rights.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
11