United States v. Giles

IN THE CASE OF
UNITED STATES, Appellee
v.
Joie L. GILES, Operations Specialist Third Class
U.S. Navy, Appellant
No. 97-0051
Crim. App. No. 95-0903
United States Court of Appeals for the Armed Forces
Argued December 10, 2003
Decided April 15, 2004
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a dissenting opinion.
Counsel
For Appellant: Major Anthony C. Williams, USMC (argued).
For Appellee: Captain Glen R. Hines, Jr., USMC (argued);
Commander Robert P. Taishoff, JAGC, USN (on brief).
Military Judge: C. R. Hunt
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Giles, No. 97-0051/NA
Judge EFFRON delivered the opinion of the Court.
The present appeal involves the second time we have reviewed
Appellant’s case. At the first trial, a general court-martial
composed of officer and enlisted members convicted Appellant,
contrary to her pleas, of two drug-related attempt offenses in
violation of Article 80, Uniform Code of Military Justice,
[hereinafter UCMJ], 10 U.S.C. § 880 (2000). She was sentenced
to a bad-conduct discharge and reduction to the lowest enlisted
grade. The convening authority approved these results, and the
Navy-Marine Corps Court of Criminal Appeals affirmed in an
unpublished opinion. On appeal, our Court set aside the
findings and sentence on the grounds that the military judge
erroneously denied a challenge for cause, and a rehearing was
authorized. United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998).
Following our decision, a rehearing was conducted before a
special court-martial composed of officer and enlisted members.
Appellant was convicted, contrary to her pleas, of the two
original drug-related attempt offenses under Article 80, as well
as a perjury charge under Article 131, UCMJ, 10 U.S.C. § 931(2000). She was sentenced to a bad-conduct discharge. The
convening authority approved these results, and the Navy-Marine
Corps Court of Criminal Appeals affirmed the findings and
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sentence. United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim.
App. 2003). Our Court granted review of the following issues:
I. WHETHER THE LOWER COURT ERRED BY
FAILING TO FIND THAT THE MILITARY JUDGE
FAILED TO PREVENT A MANIFEST INJUSTICE
AND ABUSED HIS DISCRETION BY REFUSING
TO SEVER THE PERJURY CHARGE FROM THE
TRIAL ON THE MERITS OF THE ORIGINAL
DRUG CHARGES.
II. WHETHER THE LOWER COURT ERRED BY
FAILING TO FIND THAT THE EVIDENCE OF
APPELLANT’S GUILT TO CHARGE II
(PERJURY) IS LEGALLY AND FACTUALLY
INSUFFICIENT BECAUSE THE GOVERNMENT
FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE FIRST TRIAL HAD BEEN
PROPERLY CONSTITUTED.
For the reasons set forth below, we conclude that the
military judge erred in ruling on the severance motion
referenced in Issue I and on related matters, and that such
errors were prejudicial. See Article 59(a), UCMJ, 10 U.S.C.
§ 859(a) (2000). In light of our holding, we need not address
the remaining questions under Issue II.
I. APPELLANT’S FIRST COURT-MARTIAL
At Appellant’s first court-martial, Appellant was charged
with two offenses, attempted possession and attempted
distribution of controlled substances, both in violation of
Article 80. The prosecution’s evidence consisted primarily of
testimony that Appellant intended to purchase an illegal
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substance. In the course of the trial, Appellant stated that
she had purchased a weight loss ingredient, and she denied that
she believed, suspected, or knew that the item was an illegal
substance. As noted supra, Appellant was convicted of both
offenses by general court-martial, but the conviction was set
aside on appeal.
II. APPELLANT’S SECOND COURT-MARTIAL
1. The relationship between the drug charges and the perjury
charge
After our Court set aside Appellant’s original conviction,
the Government referred the same two drug-related specifications
to a special court-martial. To prevail on the drug-related
specifications, the prosecution was required to convince the
court-martial panel, beyond a reasonable doubt, that Appellant
had purchased a substance with the intent to obtain and
distribute an illegal substance. See Manual for Courts-Martial,
United States (2002 ed.), Part IV, para. 4 [hereinafter MCM].
The Government also added a perjury charge, as follows:
In that Operations Specialist Third Class
Joie L. Giles, U.S. Navy, Transient
Personnel Unit, San Diego, California, on
active duty, having taken a lawful oath in a
trial by general court-martial of United
States v. Giles that she would testify
truly, did, at or near Naval Station
Treasure Island, California, on or about 21
September 1994 willfully, corruptly, and
contrary to such oath, testify falsely in
substance that she did not believe, suspect
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United States v. Giles, No. 97-0051/NA
or know that the substance she purchased on
or about 15 March 1994 was lysergic acid
diethylamide, which testimony was upon a
material matter and which she did not then
believe to be true.
To obtain a conviction on the perjury charge, the prosecution
was required to convince the court-martial panel, beyond a
reasonable doubt, that: (1) Appellant took an oath in a court-
martial entitled United States v. Giles (the first court-
martial); (2) the oath was required by law; (3) the oath was
administered by a person authorized to do so; (4) Appellant
willfully testified that she did not believe, suspect, or know
that the substance was an illegal substance; (5) the testimony
was material to Appellant’s first court-martial; (6) the
testimony was false; and (7) Appellant did not believe that the
testimony was true at the time she testified in her first court-
martial. See MCM at Part IV, para. 57.(b).(2).
As a practical matter, the perjury charge was dependent
upon the drug-related specifications. The heart of the charged
falsehood was the allegation that Appellant knew, believed, or
suspected that she had been provided with an illegal substance,
and that she lied when she said that she did not believe,
suspect, or know that the item was an illegal substance. If the
prosecution could not prove the two drug-related specifications
– which required that Appellant knew, believed, or suspected
that she was obtaining an illegal substance -- it could not
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United States v. Giles, No. 97-0051/NA
prevail on the perjury charge. The perjury charge was also
dependent upon the record of Appellant’s earlier court-martial.
If the prosecution could not introduce the relevant portions of
an official record of the earlier proceeding, then it could not
prevail on the perjury charge.
The interlocking evidentiary requirements presented
complications not present in a normal rehearing on
specifications of attempted possession or attempted distribution
of illegal drugs. In such a typical rehearing, evidence of an
earlier conviction for the same offense normally would be
inadmissible when the conviction had been set aside on appeal.
See Military Rules of Evidence 401, 403, 609. In the present
case, however, interjection into the proceedings of the separate
perjury charge required the Government to introduce evidence of
a trial in which Appellant was convicted without allowing such
evidence to spill over and prejudice Appellant’s right to a fair
trial on the drug offenses.
2. The severance motion
During pretrial proceedings at Appellant’s second court-
martial, the defense brought this problem to the attention of
the military judge through a motion to sever the perjury charge
from the drug-related specifications. As a matter of policy,
“[o]rdinarily, all known charges should be tried at a single
court-martial.” Rule for Courts-Martial 906(b)(10) discussion
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United States v. Giles, No. 97-0051/NA
[hereinafter R.C.M.]. As a matter of law, a party may move for
trial of designated offenses at a separate court-martial through
a motion for “[s]everance of offenses, but only to prevent
manifest injustice.” R.C.M. 906(b)(10).
The military judge agreed with the defense that it was
important to protect the interests of the defense from the
prejudice that would result from placing the prior conviction
into evidence, and sought to accomplish that through an
amendment to the charge sheet. In particular, the military
judge required the Government to amend the charges by deleting
the words “of United States [v.] Giles,” and by striking the
word “general” before “court-martial.” The military judge also
stated that the defense could be protected with a proper
limiting instruction that did not mention that Appellant was the
accused at the prior trial or that she was convicted at the
prior trial. On that basis, the military judge concluded that
severance was not required to preclude a manifest injustice.
3. The motion to restrict the prosecution’s evidence
Following the military judge’s ruling on the severance
motion, the defense then moved to preclude the prosecution from
referring to Appellant’s first court-martial. The military
judge granted the defense motion in part, incorporating the
views he expressed during consideration of the severance motion.
According to the military judge, the prosecution could proceed
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United States v. Giles, No. 97-0051/NA
so long as “the government not refer to a conviction, the
government not refer to the prior testimony as being a case
involving U.S. v. Giles, and there’s no reason to refer to it as
being a general court-martial. It could just be referred to as
a court-martial.” The military judge added that the changes
would eliminate the defense concern that the members would
necessarily infer that Appellant was the accused in the prior
court-martial, and would permit them to infer “that the prior
testimony was in someone else’s court-martial.” The
prosecution agreed with the limitations imposed by the military
judge.
The ruling by the military judge on the defense motions
reflected his recognition that there were three potentially
prejudicial aspects of the evidence concerning the prior court-
martial: (1) that it was a general court-martial; (2) that
Appellant was the accused at that court-martial; and (3) that
the prior court-martial convicted Appellant of the same drug-
related specifications that were the subject of Appellant’s new
trial.
4. The impact of the military judge’s ruling on the perjury
charge
During trial on the merits, the prosecution realized that
the prohibition on referring to Appellant as the accused in the
prior court-martial would preclude introduction of evidence
necessary to show the materiality of the alleged false statement
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United States v. Giles, No. 97-0051/NA
– evidence critical to an essential element of the charged crime
of perjury. Over defense objection, the military judge modified
his ruling, and permitted the prosecution to refer to Appellant
as the accused in the prior trial. The military judge retained
the prohibition on mentioning that the trial resulted in a
conviction, as well as the prohibition on referring to the prior
trial as a general court-martial. The military judge also
indicated that he would offer limiting instructions at the
appropriate time to address the defense concerns.
5. The limiting instruction
The prosecution subsequently introduced documentary evidence
to prove the perjury charge, including the cover sheet from the
record of the first trial which identified Appellant as the
accused. The document also contained a handwritten black mark,
which redacted the level of court-martial. The document, which
stated that the case was tried in September 1994, contained one
stamp identifying it as a “case before USCMR Panel No. 2” and
another stamp marking it “Received 17 March 1995.”
The military judge instructed the members that the
documentary evidence “has been admitted for your consideration
on the elements of the specification under Charge 2, perjury,
and for that limited perjury charge only.” The military judge
then said: “You are directed that, in making your determination
[with respect to the drug-related specifications], that you may
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United States v. Giles, No. 97-0051/NA
not consider that there has been a prior court-martial
proceeding.” He added: “You are also directed that you may not
speculate or draw any inference adverse to the accused regarding
possible results of a prior court-martial proceeding.”
6. Questions from the court-martial panel interpreting the
evidence of Appellant’s prior court-martial
Shortly after the military judge directed the members to
limit their consideration of Appellant’s prior court-martial,
the president of the panel submitted written questions to the
military judge that reflected precisely the type of speculation
that the military judge had sought to discourage through his
instructions. The president’s handwritten note contained the
following series of questions:
1. It is my understanding that a special
court-martial may or may not be a verbatim
report depending upon the sentence
adjudicated. If a discharge is involved a
verbatim report is required. If no discharge
[is] sentenced then it [is] not required by
law to be verbatim. What happen[ed] in the
1994 Special Court[-]Martial[?]
2. Does a five year statute of limitations
apply here?
3. Raise the issue about a speedy trial[?]
[W]hy 4 more years before brought to trial.
4. Why a second court[-]martial over nearly
the same charges – does double jeopardy
apply?
Although the president’s inquiry reflected an understanding
on the part of the panel’s senior member that the first trial
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may well have resulted in a decision to discharge Appellant, the
military judge declined to address the substance of these very
pointed questions. Instead, the military judge simply repeated
his earlier instruction limiting the scope of permissible
consideration with respect to the prior court-martial. He asked
the members whether they understood the instruction, and he
obtained an affirmative response from all members. He repeated
the same instruction prior to deliberations, and obtained
affirmative responses from the members when he asked them
whether they understood the instruction and whether they could
adhere to it.
III. DISCUSSION
Under R.C.M. 906(b)(10), a military judge is required to
grant a severance motion when necessary to avoid a “manifest
injustice.” We review such a decision for an abuse of
discretion. United States v. Duncan, 53 M.J. 494, 497-98
(C.A.A.F. 2000). If the motion has been denied, the appellant
must demonstrate more than the fact that separate trials would
have provided a better opportunity for an acquittal. Id. The
appellant must show that the ruling caused actual prejudice by
preventing the appellant from receiving a fair trial. Id. In
conducting such a review, we apply the test articulated in
United States v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996):
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United States v. Giles, No. 97-0051/NA
(1) Do the findings reveal an impermissible crossover of
evidence?
(2) Would the evidence of one offense be admissible proof of
the other?
(3) Did the military judge provide a proper limiting
instruction?
The Government’s decision to try the perjury charge at the
rehearing on the underlying drug-related specifications instead
of ordering a separate trial created a substantial risk of
impermissible crossover. The military judge initially attempted
to address this problem by limiting the prosecution’s use of
perjury evidence. His later modification of that ruling
significantly vitiated its effect, as illustrated by his
interchange with the president of the court-martial panel. The
questions raised by the president of the panel, based on the
evidence admitted under the military judge’s modified ruling,
reflected a well-founded suspicion that Appellant had been tried
previously by a court-martial on the very charges that were now
being considered, and that the prior court-martial had sentenced
her to a discharge.
The pointed questions raised by the president of the panel
should not have come as a surprise to the military judge in
light of the training and experience provided to military
commanders. A military commander is responsible for maintaining
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good order and discipline within his or her unit. Military
commanders not only exercise law enforcement powers, they also
exercise considerable responsibility for the administration of
military justice as forwarding and convening authorities. The
military services typically provide commanders with training in
military justice on a regular basis, both in the field and in
professional military education courses. As a result, it is not
unusual for a commander to become reasonably well-versed in
military law. The questions posed by the president of the
court-martial in this case demonstrated that the senior member
of the panel had a reasonable basis for concluding that
Appellant had been tried, convicted, and sentenced to a
discharge for the same drug-related specifications that were now
under consideration. While the panel member did not know why
another trial was being held, the evidence before the panel and
the instructions of the military judge provided no basis for the
panel member to understand that there had been anything
deficient in the prior verdict.
This is not the case of a surprise development at trial, or
an unanticipated evidentiary ruling in the midst of complex
testimony. The defense twice advised the military judge of
exactly what was going to happen, both in the motion for
severance and in the motion to restrict the prosecution’s
evidence. The defense warned the military judge that
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United States v. Giles, No. 97-0051/NA
Appellant’s right to a fair trial on the drug-related
specifications would be undermined by the perjury charge,
because the members would figure out that Appellant was being
tried for the very same charges on which she had previously been
convicted. The questions by the president of the panel
demonstrated that the defense had good grounds for this concern.
Despite these concerns, the military judge permitted the
Government to introduce evidence on the perjury charge under
which the members could reasonably conclude that Appellant had
been tried and convicted in the first trial of the same drug-
related specifications that were before them in the second
trial. They also could reasonably conclude that something had
happened between the first and second trials to convince the
Government that Appellant had lied at the first trial when she
denied that she had knowingly purchased an illegal substance.
Under these circumstances, the perjury evidence was both
irrelevant and highly prejudicial to Appellant’s right to
receive a fair trial on the drug-related specifications. The
instructions by the military judge -- which he repeated without
any meaningful amplification after the president of the court-
martial identified the prejudicial nature of the evidence --
simply told the members to suspend their understanding of the
basic mechanics of the military justice system. As such, the
instructions were insufficient to prevent a manifest injustice.
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Under the facts of this case, the rulings by the military judge
on both pretrial motions and evidentiary objections produced
errors that caused actual prejudice and prevented the accused
from receiving a fair trial.
IV. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings and the sentence
are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. Rehearings may be ordered in
accordance with this opinion.
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United States v. Giles, No. 97-0051/NA
CRAWFORD, Chief Judge (dissenting):
Military justice strongly disfavors the severance of known
charges. For this reason, a military judge should grant a
severance request only to avoid “manifest injustice.” The
military judge in this case abated the potential for manifest
injustice through a preferred, less drastic remedy than
severance: narrowly restricting the Government’s use of the
perjured testimony, and giving three comprehensive limiting
instructions to the members to focus their consideration of the
testimony. These remedial actions ensured that Appellant did
not suffer manifest injustice from joinder of the two charges at
a single court-martial. Accordingly, I respectfully dissent
from the lead opinion.
There is a “general policy in the military favoring trial
of all known charges at a single court-martial.” United States
v. Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999)(quoting Manual for
Courts-Martial, United States (1998 ed.), Analysis of Rules for
Courts-Martial at A21-53). See also Rule for Courts-Martial
601(e)(2) discussion (“Ordinarily, all known charges should be
referred to a single court-martial.”). Indeed, “unified
sentencing by a court-martial favors joining all known offenses
into a single trial, thus exposing the accused to only one
sentence for his criminal misconduct, rather than a series of
separate sentences.” United States v. Haye, 29 M.J. 213, 215
United States v. Giles, No. 97-0051/NA
(C.M.A. 1989). Nevertheless, an accused may file a motion to
sever charges in order “to prevent manifest injustice.” R.C.M.
906(b)(10). Under this rule, the military judge may sever
charges to avoid “impermissible spillover [of evidence] in
various ways from the proof of one offense into the trial of
another offense” that would otherwise deny an accused the right
to a fair trial. United States v. Duncan, 53 M.J. 494, 497
(C.A.A.F. 2000).
To determine whether severance is required to prevent
manifest injustice, the court considers whether the findings
reflect an impermissible spillover of prejudice from one charge
to the other; whether the evidence of one offense would be
admissible proof of the other; and whether the military judge
provided a proper limiting instruction. United States v.
Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996).
[A]n abuse of discretion will be found only where the
defendant is able to show that the denial of a
severance caused him actual prejudice in that it
prevented him from receiving a fair trial; it is not
enough that separate trials may have provided him with
a better opportunity for an acquittal.
Duncan, 53 M.J. at 497 (quoting United States v. Alexander, 135
F.3d 470, 477 (7th Cir. 1998))(emphasis added). Importantly,
appropriate remedial actions and limiting instructions by the
military judge may abate the prejudicial effect of any
spillover, and thereby prevent manifest injustice. Id. at 498
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United States v. Giles, No. 97-0051/NA
(finding no manifest injustice when “the military judge gave
limiting instructions three times to the members to consider
these offenses separately” and “took steps to bifurcate the
presentation of evidence and argument by the prosecution to
avoid the risk of impermissible spillover”); Haye, 29 M.J. at
215 (noting that “particularly with good instructions” the
danger of prejudice is less likely); United States v. Hogan, 20
M.J. 71, 73 (C.M.A. 1985)("chances of [the members] cumulating
the evidence . . . substantially diminished” by proper limiting
instructions from military judge).
Applying these standards to the case at bar, I would find
that even if there was a spillover of evidence, and even if
evidence of the perjury offense would not have been admissible
as evidence of the drug offense, the military judge’s remedial
actions and substantial limiting instructions prevented manifest
injustice. See Duncan, 53 M.J. at 497. Accordingly, I would
hold that the military judge did not abuse his discretion in
refusing to sever the perjury charge from trial on the merits of
the original drug charge.
When Appellant argued at trial that the evidence on the
perjury charge would improperly bolster the Government’s case on
the drug-related offenses, the military judge disagreed.
Nevertheless, the judge expressed his intention to provide the
members with an appropriate spillover instruction, as well as a
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United States v. Giles, No. 97-0051/NA
cleansed charge sheet omitting any mention of the following
facts: the Appellant was the accused in the earlier court-
martial proceeding where the perjury occurred; the proceeding
was specifically a general court-martial; and that Appellant was
convicted at that proceeding. The judge later modified this
ruling and permitted trial counsel to explain to the members
that a prior court-martial involving Appellant had taken place,
but forbade counsel to mention that the trial was a general
court-martial or that Appellant had been convicted. In taking
these steps, the military judge restricted the Government’s use
of the perjured testimony at trial, thereby ensuring the
Government divulged to the members extremely limited information
about the first trial.
Moreover, in keeping with his word, the military judge gave
three separate limiting instructions that the evidence of
Appellant’s testimony at her prior court-martial was to be
considered solely for the perjury charge and that the fact that
she had been tried earlier could not be considered for any
purpose in determining her guilt on the current drug-related
offenses. The judge gave the first limiting instruction after
the Government rested its case:
The prosecution has introduced evidence, Prosecution
Exhibit 4, which you will obtain a copy of in just a
moment, containing the accused’s testimony at a prior
court-martial proceeding. There have also been other
references during this trial about that. This
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United States v. Giles, No. 97-0051/NA
evidence has been admitted for your consideration on
the elements of the specification under Charge 2,
perjury, and for that limited perjury charge only.
You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding possible
results of a prior court-martial proceeding.
You are directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the
evidence that is submitted before this court, and you
may not consider any other matters whatsoever.
The judge repeated the instruction when the president of
the court proposed questions about the transcript of the
original court-martial. The judge stated:
Now, I’m going to give you an instruction that I’ve
given you earlier in this case. The prosecution,
during this trial, produced evidence, Prosecution
Exhibit 4, containing the accused’s testimony at a
prior court-martial proceeding. There have been other
references to a prior court-martial. This evidence
has been admitted for your consideration on the
elements of the specification under Charge II,
perjury, and for that limited purpose only.
You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding possible
results of a prior court-martial proceeding. You are
directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the
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United States v. Giles, No. 97-0051/NA
evidence that is admitted before this court, and you
may not consider any other matters whatsoever.
Do the members understand that instruction?
Affirmative response from all members.
Finally, the military judge gave the limiting instruction a
third time, just prior to member deliberations:
The prosecution has introduced, Prosecution Exhibit 4,
containing the accused’s testimony at a prior court-
martial proceeding. There have been other references
to a prior court-martial. This evidence has been
admitted for your consideration on the elements of the
specification under Charge II, perjury, and for that
limited purpose only.
You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding the
possible results of a prior court-martial proceeding.
You are directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the
evidence that is admitted before this court, and you
may not consider any other matters whatsoever.
Do the members clearly understand this instruction?
That’s an affirmative response from all members.
Will the members be able to follow this instruction?
Affirmative response from all members.
The military judge therefore restricted the extent to which
the Government could address Appellant’s first trial. The judge
also gave comprehensive limiting instructions, on three
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United States v. Giles, No. 97-0051/NA
different occasions, directing the members that the evidence
from the first court-martial could be considered solely for the
perjury charge, and that the fact that Appellant testified in a
prior court-martial could not be considered for any purpose in
determining her guilt on the current drug-related offenses.
This Court should be “confident that the military members were
able to follow their instructions to consider [the offenses]
separately.” Duncan, 53 M.J. at 498. See United States v.
Orsburn, 31 M.J. 182, 188 (C.M.A. 1990)(noting that absent
evidence to the contrary, we presume the members followed the
judge’s instructions). In short, the judge’s remedial actions,
including his substantial limiting instructions, focused the
members on the proper use of the perjury evidence, and in so
doing abated the prejudicial impact of any spillover. See
Duncan, 53 M.J. at 498.
Based on the general policy in the military against
severance, the combined well-known facts of this case, the
limiting instructions on three separate occasions, and the
members’ affirmative response that they would follow these
instructions, I would dissent.
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