United States v. James

IN THE CASE OF
UNITED STATES, Appellee
v.
Allan P. JAMES, Airman
U.S. Air Force, Appellant
No. 04-0284
Crim. App. No. 34863
United States Court of Appeals for the Armed Forces
Argued November 8, 2004
Decided May 26, 2005
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain L. Martin Powell (argued); Major Terry
L. McElyea (on brief).
For Appellee: Captain Stacey J. Vetter (argued); Colonel
LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on
brief).
Military Judge: Thomas W. Pittman
This opinion is subject to revision before final publication.
United States v. James, No. 04-0284/AF
Judge ERDMANN delivered the opinion of the court.
Airman Allan P. James pleaded guilty to using and
distributing ecstasy in violation of Article 112a, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was
sentenced to a dishonorable discharge, two years of confinement,
forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority approved the findings and
sentence and granted James 120 days of administrative
confinement credit under Rule for Courts-Martial (R.C.M.)
305(k). On December 10, 2003, the United States Air Force Court
of Criminal Appeals affirmed the findings and sentence in an
unpublished opinion. United States v. James, No. ACM 34863
(A.F. Ct. Crim. App. Dec. 10, 2003).
A judge may limit a defendant’s cross-examination of a
prosecution witness regarding the terms of a plea agreement
entered into by the witness, so long as adequate inquiry into
possible bias of that witness has been allowed through other
lines of questioning. United States v. Nelson, 39 F.3d 705, 708
(7th Cir. 1994). During James’s court-martial the military
judge allowed the defense to cross-examine one of the
prosecution’s witnesses concerning some aspects of the witness’s
pretrial agreement. The military judge, however, precluded the
defense from questioning the witness regarding a specific term
of that agreement. We granted review of Issue I to determine
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whether the limitations placed on the cross-examination of the
witness impermissibly infringed upon James’s Sixth Amendment
rights.1
A member of a court-martial panel may be removed for cause
if it is shown that he or she “has an inelastic opinion
concerning an appropriate sentence for the offenses charged.”
R.C.M. 912(f) discussion. During voir dire one of the potential
members expressed reservations about discharging servicemembers
who were convicted of minor drug crimes. She later agreed that
if the evidence warranted, she would be able to vote for a
punitive discharge. The military judge granted the Government’s
challenge for cause against the member. We granted review of
Issue II to evaluate whether the military judge’s decision to
grant the challenge for cause was prejudicial error.2
1
In Issue I we granted review of the following:
WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF
APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE
WITNESSES AGAINST HIM BY REFUSING TO PERMIT DEFENSE
COUNSEL TO EXPLORE THE POTENTIAL BIAS OF PROSECUTION
WITNESSES ARISING FROM PROMISES BY THE GOVERNMENT TO
LIMIT PUNISHMENT OF THE WITNESSES IN EXCHANGE FOR
COOPERATION WITH THE GOVERNMENT IN THE PROSECUTION OF
APPELLANT.
2
In Issue II we granted review of the following:
WHETHER THE MILITARY JUDGE ERRED IN GRANTING THE
PROSECUTION'S CHALLENGE FOR CAUSE (OVER DEFENSE
OBJECTION) AGAINST A COURT MEMBER.
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We find that the military judge did not err in regard to
either ruling. His ruling limiting cross-examination did not
impermissibly infringe on James’s Sixth Amendment rights and his
grant of the Government’s challenge for cause was not an abuse
of discretion. Accordingly, we affirm the decision of the Court
of Criminal Appeals.
I. Cross-Examination of Airman Basic Rose
Background
During the sentencing phase of the trial, the prosecution
called Airman Basic Scott Rose, James’s alleged best friend, to
testify against James. Rose testified that James had introduced
him to ecstasy by providing him with his first ecstasy pill. He
also testified about James’s use and distribution of ecstasy on
a number of occasions. At the time of his testimony, Rose had
been tried by a general court-martial, had pled guilty pursuant
to a pretrial agreement, and had been sentenced.
His pretrial agreement limited the period of confinement
that could be approved by the convening authority to eighteen
months. Although the maximum authorized punishment for Rose’s
crimes included the possibility of confinement for fifty-two
years, his adjudged sentence was eighteen months and a punitive
discharge. At the time of Rose’s testimony he had not yet
submitted clemency matters for the convening authority’s
consideration.
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During cross-examination of Rose, the defense attempted to
explore Rose’s potential bias in favor of the Government by
inquiring into Rose’s offenses and the terms of his pretrial
agreement. The military judge allowed the defense some latitude
to explore potential motives for Rose to fabricate testimony
because of his pretrial agreement. He ruled, however, that the
terms of Rose’s pretrial agreement concerning the maximum
punishment the convening authority could approve were not
relevant.
In response to questioning by the defense and trial
counsel, Rose acknowledged: (1) that he had a pretrial
agreement in his own court-martial; (2) that as part of that
pretrial agreement he pleaded guilty and entered into a
stipulation of facts; (3) that he had immunity for his testimony
in James’s court-martial; (4) that his pretrial agreement
required him to cooperate with the Government against his best
friend; and (5) that clemency was still pending in his case and
as part of that process he would be able to tell the convening
authority that he had cooperated and testified against James.
Discussion
Military Rule of Evidence 608(c) provides that “[b]ias,
prejudice, or any motive to misrepresent may be shown to impeach
the witness either by examination of the witness or by evidence
otherwise adduced.” James argues that he was precluded from
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adequately exploring the bias and motives of a witness against
him by the military judge’s rulings, in violation of his Sixth
Amendment rights. He notes that in his pretrial agreement, Rose
received a reduction in his possible sentence from fifty-two
years to eighteen months. He argues that this potential
windfall was relevant evidence of Rose’s bias in favor of the
Government, regardless of the fact that Rose had already been
sentenced to eighteen months and would not realize any actual
benefit of the sentence limitation.
The Government argues that the military judge exercised his
discretion in placing reasonable limits on Rose’s cross-
examination in order to avoid confusion of the issues. It
contends that James had ample opportunity to explore Rose’s bias
by exposing the fact that he was testifying pursuant to a
pretrial agreement and by obtaining his admission that he might
receive a benefit in the form of clemency from his testimony.
The Government concludes that Rose’s failure to actually benefit
from the agreement means that the terms of the agreement are not
relevant to show possible bias.
In United States v. Bahr, 33 M.J. 228, 232 (C.M.A. 1991),
this court adopted the standard set forth by the Supreme Court
in Delaware v. Van Arsdall, 475 U.S. 673 (1986), for determining
whether cross-examination inquiring into the potential bias of a
witness was properly limited:
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“[w]e have recognized that the exposure of a witness’
motivation in testifying is a proper and important
function of the constitutionally protected right of
cross-examination.” Davis [v. Alaska, 415 U.S. 308,
316-17 (1974)] (citing Green v. McElroy, 360 U.S. 474,
496 (1959)). It does not follow, of course, that the
Confrontation Clause of the Sixth Amendment prevents a
trial judge from imposing any limits on defense
counsel’s inquiry into the potential bias of a
prosecution witness. On the contrary trial judges
retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.
475 U.S. at 678-79. Because this court has not had occasion to
specifically address the scope of cross-examination that a judge
should allow concerning pretrial agreements, it is helpful to
review the federal circuit court decisions that have considered
the issue.
In United States v. Maceo, 947 F.2d 1191 (5th Cir. 1991),
the Fifth Circuit found that the trial judge did not err when he
limited the defense attorney’s cross-examination of a witness
regarding the terms of his plea agreement. The court noted that
“[t]he Confrontation Clause does not prohibit a trial judge from
limiting cross-examination where the testimony would confuse the
issues, is repetitive or only marginally relevant.” Maceo, 947
F.2d at 1200 (citing Van Arsdall, 475 U.S. at 679). The court
found that the jury was well aware of the terms of the plea
agreement and that limiting the cross-examination simply
precluded additional questioning on the subject. Id.7
United States v. James, No. 04-0284/AF
In United States v. Nelson, the Seventh Circuit found that
the Sixth Amendment rights of the defendants were not violated
where the trial judge prevented defense counsel from asking two
prosecution witnesses “what penalties they might have faced
without plea bargains.” 39 F.3d 705, 707-08 (7th Cir. 1994).
Defense counsel was allowed to impeach the motives of the
witnesses by eliciting testimony that the witnesses were
testifying under plea bargains as well as what benefits they
were to receive from their agreements. Id. at 707.
The court in Nelson discussed the limitations of cross-
examination and noted that courts must initially distinguish
between the “‘core values of the confrontation right and more
peripheral concerns which remain within the ambit of the trial
judge’s discretion.’” 39 F.3d at 709 (quoting United States v.
Saunders, 973 F.2d 1354, 1358 (7th Cir. 1992)). Addressing the
limitations imposed by the trial judge, the court found that
there was no constitutional violation because the limitations:
on cross-examination did not deny the defendants the
opportunity to establish that the witnesses may have
had a motive to lie; rather, the limitations denied
them the opportunity to add extra detail to that
motive. “‘The exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-
examination.’” Van Arsdall, 475 U.S. at 678-79, 106 S.
Ct. at 1435 (quoting Davis v. Alaska, 415 U.S. 308,
316-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347(1974)). But once this core function is satisfied by
allowing cross-examination to expose a motive to lie,
it is of peripheral concern to the Sixth Amendment how
much opportunity defense counsel gets to hammer that
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United States v. James, No. 04-0284/AF
point home to the jury. The trial court may preclude
“cumulative and confusing cross-examination into areas
already sufficiently explored to permit the defense to
argue personal bias and testimonial unreliability.”
United States v. Robinson, 832 F.2d 366, 373 (7th Cir.
1987), cert. denied, 486 U.S. 1010, 108 S. Ct. 1739,
100 L. Ed. 2d 203 (1988).
Id. at 708. The court then went on to find that the trial judge
had allowed the jury to hear enough evidence to make a
“discriminating appraisal” of the witnesses’ motives and biases,
and that he did not abuse his discretion in limiting cross-
examination. Id.
Faced with somewhat different factual situations, other
circuit courts have taken different views of the issue. In
United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989), a
prosecution witness had pleaded guilty to manslaughter instead
of murder as part of her plea agreement but had not yet been
sentenced. The Eighth Circuit found that under those
circumstances an inquiry into the terms of the agreement was
essential. The court noted that the information is especially
relevant if the witness has not yet been sentenced because
“there is a continuing incentive to give testimony that
strengthens the prosecution’s case.” Id. at 443.
In United States v. Schoneberg, 388 F.3d 1275 (9th Cir.
2004), the prosecution witness was a coconspirator whose plea
agreement required his cooperation with the Government. The
jury was made aware of the plea agreement and also was told that
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United States v. James, No. 04-0284/AF
a term of the plea agreement reserved the possibility of a
sentence reduction after the witness testified against his
coconspirators. That term required the Government to file a
post-sentencing motion to reduce the witness’s sentence if it
determined that he had provided “substantial assistance” to the
Government through his testimony. Schoneberg, 388 F.3d at 1277-
78.
The trial judge prohibited the defense attorney from cross-
examining the witness as to whether his testimony was affected
by the Government’s promise to move for a sentence reduction if
he provided them with “substantial assistance.” Id. The Ninth
Circuit found that this prohibition had the effect of keeping
from the jury the fact that the witness was conscious,
throughout his testimony, that the Government and not just the
jury was judging the truthfulness of his statements. The court
found that this consciousness gave him a motive to lie in favor
of the Government and therefore was a relevant area for cross-
examination. Id. at 1280.
Having reviewed the holdings in these cases, we conclude
that the limitations placed on cross-examination by the military
judge were within his discretion and did not affect James’s core
constitutional right to cross-examination. The members knew
that Rose had received an agreement in exchange for his
testimony and that pursuant to that agreement he had pleaded
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guilty and entered a stipulation of fact. They also knew that
this agreement required him to cooperate with the Government in
James’s prosecution. They knew that he had been granted
immunity for his testimony in James’s trial. Finally, they
knew that his clemency hearing was still pending and that he
would be able to tell the convening authority that he had
cooperated in James’s prosecution. As the Seventh Circuit noted
in Nelson, once the defendant has been allowed to expose a
witness’s motivation in testifying, “it is of peripheral concern
to the Sixth Amendment how much opportunity defense counsel gets
to hammer that point home to the jury.” Nelson 39 F.3d at 708.
Additionally, we find it important to consider that
although Rose entered into a pretrial agreement that promised a
substantial reduction in sentence if he cooperated with the
Government, he already had been sentenced to eighteen months of
confinement by members who had no knowledge of the terms of the
pretrial agreement. This is distinguishable from both Roan
Eagle and Schoneberg where the witnesses had yet to receive the
benefit of their bargain with the Government and were therefore
under a continuing obligation to comply with their agreements to
testify against the defendant to obtain the promised relief.
Rose’s only “continuing incentive” identified in this case was
that his clemency appeal was pending before the convening
authority and if he testified favorably he would be able to
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inform the convening authority that he cooperated with the
Government in James’s trial. As noted above, the military judge
allowed the defense to bring these facts to the attention of the
members and expose Rose’s potential bias and motive to lie.
A military judge has wide discretion to limit repetitive
cross-examination or to prohibit cross-examination that may
cause confusion. See Van Arsdall, 475 U.S. at 679. The
military judge in this case properly exercised this discretion
and we affirm the decision of the Court of Criminal Appeals.
II. Voir Dire of Major Winkler
Background
During voir dire of potential panel members, Major (Maj)
Maryellen Winkler was questioned regarding her view of
discipline in the Air Force and more specifically regarding her
views on punishments for drug crimes. In responding to those
questions Maj Winkler mentioned her concern over a newspaper
article that she had seen regarding a large drug bust in which a
number of Air Force members were caught and punished. Her
testimony in response to questions from the trial and defense
counsels and the military judge is as follows:
Examination by Circuit Trial Counsel:
Q. Major Winkler in response to one of my questions
regarding progressive discipline, you said that you didn’t
feel that a court-martial may be the appropriate starting
point for someone who has admitted guilty to use and
illegal distribution of drugs. Could you please expound on
your answers to why you feel that way?
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A. I truly feel, looking at the individual, it almost
feels like it is a one shot deal. You have one shot at
making a mistake and then that’s it. Of course everyone has
seen the Air Force Times showing the big drug bust in the
Virginia area and all the airmen and airman basics, senior
airman and what sentences they have received, etcetera,
etcetera, and I thought about that before I even knew what
this case was about and it was kind of shocking to me.
Q. The length of time?
A. The length of time and what they received, yes.
Q. Will you be thinking about that back in the deliberation
room?
A. I’m human and that is just how I feel. Yes, I would
be. It might be just my personality, it just might be
looking at him, he’s young, does he just deserve one shot
and hopefully not getting what they gotten. There is a
conflict in my mind. But, I didn’t hear any of the
evidence and I don’t know exactly what is going on, etc.
Q. Let me ask you . . . do you think that drug use is more
of a medical problem then [sic] . . .
A. No, not at all. I guess maybe what I am thinking is
that we are all young, we all do stupid stuff sometimes,
and one mistake shouldn’t kill us . . . .
. . . .
Examination by Circuit Defense Counsel:
Q. Ma’am, if the military judge instructs you that you are
to consider -– I expect that he will instruct you that you
are to consider the full range of punishments, from no
punishment up to the maximum punishment, can you assure the
court, both the government and defense, that you will do
that?
A. I think I can, because we are looking at him totally
not as a young kid, we are looking at him as a military
member too.
. . . .
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Examination by the Military Judge:
Q. And let me just ask you, do you feel comfortable
sitting on this case?
A. No, I don’t.
Q. And why is that?
A. Just because, again, I have read -– you just see in the
paper all the time and the punishments that the kids got,
the young airmen got in Virginia -– we have no tolerance of
drugs whatsoever in the military, which we know that. Yet
on the other hand, I just feel that a young person
shouldn’t be probably kicked out and put in jail or
whatever.
Q. I guess I am trying to get you to go ahead and conclude
for me. What is the conclusion?
A. I just feel that he deserves more of a shot than one
error in his career.
Q. When I asked you if you feel uncomfortable sitting in
the case, do you feel that you can perform your duties in
sitting on a case?
A. Definitely, Sir, I can perform my duties. Would I
feel comfortable with myself, yes, because it is my duty.
Will I do the right thing? Yes, I will.
. . . .
Q. And you mentioned these Air Force Times articles that
you have read . . . [.]
. . . .
A. Actually there was a big bust in Virginia, the
Virginia area, I think there were about 20 people that were
listed in the Air Force Times ranging anywhere from an
airman basic -– I think the highest rank was a senior
airman, I am not sure. Then I saw all their sentences and
I was shocked, I was taken back.
Q. At what?
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A. Their sentences. I really felt that while these –-
again, I didn’t hear any of their cases, but I just
thought, wow, these guys made a mistake and look at the
punishment for this. I am not making myself clear am I?
Q. No, it is important since you have had some obviously
careful thought about the offense of which the accused is
now before this court for sentencing, that you disclose to
both parties what that careful thought is. Can you be fair
to both the government and the accused in this case?
A. Yes, I feel I can be fair, Sir.
The prosecution challenged Maj Winkler for cause on the
grounds of an “inelastic predisposition in favor of the
defense.” The military judge granted the challenge stating:
Well, my recollection is that she not only said she
was shocked twice by a punitive discharge, but shocked
by another form of punishment as well, that may have
been confinement. She also said that. “She hated or
hates to see the airmen kicked out for this offense”
were the words I recall her using in reference to
those discharges. She seemed almost relieved when I
asked if she would be uncomfortable sitting on the
court, as though it was going to be an opportunity for
her not to have to sit on the court. I think at the
same time she is professional enough to let us know
that as much as she hates to see a sort of punishment
like this, or as much as she is shocked, she is a
professional officer, to let us know that she would
try and do her best to be fair in performing her
duties. It just seems to the court, from viewing her
and viewing her expressions as she described the Air
Force Times article in regard to those other cases,
that she would have an extremely difficult time in
sitting on this case and doing just what she promised
to do, which was consider the entire range of
punishments, just wavering a little bit in that area
is cause for concern as well. I am going to grant the
challenge for cause.
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Discussion
This court has held that an accused “‘has a constitutional
right, as well as a regulatory right, to a fair and impartial
panel.’” United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.
2004) (quoting United States v. Wiesen, 56 M.J. 172, 174
(C.A.A.F. 2001)). A member may be removed for cause if it is
shown that he or she should not sit “in the interest of having
the court-martial free from substantial doubt as to legality,
fairness, and impartiality.” R.C.M. 912(f)(1)(N). The
discussion accompanying this rule provides that “an inelastic
opinion concerning an appropriate sentence for the offenses
charged” may be grounds for challenge under this provision.
R.C.M. 912(f) discussion. The party that makes the challenge
for cause has the burden of proving that grounds for a challenge
exist. R.C.M. 912(f)(3).
Generally, this court has addressed challenges for cause
where those challenges were denied.3 In evaluating a military
judge’s ruling on a challenge for cause, the court has found it
appropriate to recognize the military judge’s superior position
to evaluate the demeanor of court members. A military judge’s
ruling on a challenge for cause will therefore not be reversed
3
It is only in cases involving the death penalty that the court
has been asked to review a challenge for cause that was granted.
See United States v. Curtis, 33 M.J. 101, 107 (C.M.A. 1991);
United States v. Gray, 51 M.J. 1, 31-32 (C.A.A.F. 1999).
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absent a clear abuse of discretion. See United States v.
McLaren, 38 M.J. 112, 118 (C.M.A. 1993); United States v. White,
36 M.J. 284, 287 (1993).
In evaluating challenges for cause based on claims of
“inelastic attitude,” this court has held that “an unfavorable
inclination toward an offense is not automatically
disqualifying. ‘The test is whether the member’s attitude is of
such a nature that he will not yield to the evidence presented
and the judge’s instructions.’” McLaren, 38 M.J. at 118
(citations omitted) (quoting United States v. McGowan, 7 M.J.
205, 206 (C.M.A. 1979)).
In the context of challenges brought by a defendant, this
court has stated that “military judges must liberally grant
challenges for cause.” United States v. Downing, 56 M.J. 419,
422 (C.A.A.F. 2002); see also McLaren, 38 M.J. at 118 (quoting
United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987)). The
“liberal grant” policy supports the UCMJ’s interest in ensuring
that members of the military have their guilt or innocence
determined “by a jury composed of individuals with a fair and
open mind.” United States v. Smart, 21 M.J. 15, 18 (C.M.A.
1985) (quoting United States v. Deain, 5 C.M.A. 44, 49, 17
C.M.R. 44, 49 (1954)). It is a response to the unique nature of
the military justice system “because in courts-martial
peremptory challenges are much more limited than in most
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civilian courts and because the manner of appointment of court-
martial members presents perils that are not encountered
elsewhere.” Id. at 19; see also Glenn, 25 M.J. at 279. Because
the Government rather than the defendant brought this challenge
for cause, we must first consider whether the “liberal grant”
policy is applicable under those circumstances.
Unlike the convening authority, who has the opportunity to
provide his input into the makeup of the panel through his power
to detail “such members of the armed forces as, in his opinion,
are best qualified for the duty,” see Article 25(d)(2), UCMJ, 10
U.S.C. § 825(d)(2)(2000); see also R.C.M. 503(a)(1), the
defendant has only one peremptory challenge at his or her
disposal.4 See Glenn, 25 M.J. at 279. The liberal grant rule
protects the “perception or appearance of fairness of the
military justice system.” United States v. Dale, 42 M.J. 384,
386 (1995). Given the convening authority’s broad power to
appoint, we find no basis for application of the “liberal grant”
policy when a military judge is ruling on the Government’s
challenges for cause.
4
The staff judge advocate also may have the power to excuse
members before the court-martial is assembled, and the trial
counsel then still has one peremptory challenge during the
court-martial itself. See R.C.M. 505(c)(1)(B); R.C.M.
912(g)(1). The Government therefore has ample opportunity to
affect the makeup of the panel before trial defense counsel has
any opportunity for input.
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We turn next to the central question of whether the
military judge’s finding that Maj Winkler “would have an
extremely difficult time in sitting on this case and doing just
what she promised to do, which was consider the entire range of
punishments,” was clearly erroneous. Maj Winkler repeatedly
expressed concern with the harsh punishments handed out for drug
crimes in the Air Force. She clearly expressed her feeling that
“we are all young, we all do stupid stuff sometimes, and one
mistake shouldn’t kill us.” She also stated that she would feel
uncomfortable sitting as a member because of her beliefs. While
Maj Winkler provided appropriate responses to rehabilitative
questions, the military judge not only was able to hear her
responses, he was able to evaluate her demeanor by “viewing her
and viewing her expressions.”
We conclude that the military judge did not abuse his
discretion in granting the Government’s challenge to Maj Winkler
on the basis of an “inelastic predisposition.” The military
judge found that Maj Winkler wavered when asked if she could
consider the entire range of punishments and expressed her
concerns regarding punishments in drug cases both verbally and
nonverbally. We decline to find his conclusion that she would
have trouble considering the entire range of punishments to be
clearly erroneous.
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We also do not see evidence that the military judge applied
the liberal grant policy in reaching his conclusion. The record
reflects that he carefully considered all of Maj Winkler’s
responses and her demeanor in reaching his conclusion.
Accordingly, we affirm the decision of the Air Force court as to
Issue II.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to Issues I and II.
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