UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, HAM, and JOHNSON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 RICKY L. FISHER
United States Army, Appellant
ARMY 20080012
Headquarters, Fort Drum, New York
Colonel David L. Conn, Military Judge
Lieutenant Colonel Michael P. Ryan, Staff Judge Advocate
For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew
M. Miller, JA; MAJ Grace M. Gallagher, JA; Captain Pamela Perillo, JA (on
specified issue brief); MAJ Theresa Raymond, JA; MAJ William M. Fischbach, III,
JA (on brief).
For Appellee: Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA
(on specified issue brief); Lieutenant Colonel Francis C. Kiley, JA (on brief).
20 February 2009
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OPINION OF THE COURT
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HAM, Judge:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of wrongful possession of a controlled substance with
intent to distribute (two specifications), in violation of Article 112a, Uniform Code
of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for one year and three
months, total forfeiture of all pay and allowances, and reduction to Private E1.
Pursuant to a pretrial agreement, the convening authority limited confinement to ten
months, but otherwise approved the adjudged sentence. The case is before the court
for review pursuant to Article 66, UCMJ.
Appellate defense counsel submitted the case to the court for review on its
merits, that is, without raising any issues other than those appellant raised
personally pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After
our initial review of the record of trial, we specified the following two issues:
FISHER – ARMY 20080012
I.
WHETHER THE MILITARY JUDGE COMMITTED
PLAIN ERROR WHEN HE ALLOWED TESTIMONY
FROM SFC ESSINGER AND ARGUMENT BY TRIAL
COUNSEL, DURING AGGRAVATION AND
SENTENCING, THAT: (1) THE COMMAND WAS
PERCEIVED TO BE “SOFT ON CRIME” DUE TO THE
LENGTH OF TIME IT TOOK TO BRING THE CASE TO
TRIAL, AND; (2) THE ACCUSED SHOULD BE
PUNISHED FOR THE MAN-HOURS REQUIRED
“DEALING WITH LEGAL PAPERWORK,
COUNSELINGS, AND TAKING THE ACCUSED TO
AND FROM APPOINTMENTS”?
II.
IF THE MILITARY JUDGE COMMITTED PLAIN
ERROR, DID THE ERROR AFFECT THE ADJUDGED
SENTENCE?
We have considered the entire record of trial, the matters appellant personally
raised pursuant to Grostefon, 12 M.J. 431, appellant’s brief on the specified issues,
and the government’s reply thereto. We find clear and obvious error in the trial
counsel’s presentation of improper evidence in the sentencing proceeding, and by the
trial counsel’s argument concerning that evidence. In this judge alone case,
however, we conclude that the clear and obvious errors did not cause appellant to
suffer material prejudice to his substantial rights. Accordingly, we affirm the
findings and sentence as approved by the convening authority.
FACTS
Appellant pled guilty to possessing cocaine and marijuana with the intent to
distribute those substances. As stipulated by the parties at trial, appellant obtained
the drugs in April 2007, and “began to advertise among [s]oldiers that the drugs
were for sale,” but another dealer was selling drugs at a cheaper price and appellant
was unable to sell his drugs at that time, so he stored them in a pair of shoes in his
barracks room. On 29 May 2007, after a soldier implicated appellant, agents of the
Criminal Investigation Command (CID) obtained a search authorization for
appellant’s barracks room and found three small bags containing what was later
determined to be marijuana and cocaine. On 30 May 2007, appellant confessed to
the offenses. Charges were not preferred until October 2007, and appellant did not
face trial on the offenses until 14 December 2007 and 8 January 2008.
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The trial counsel called Sergeant First Class (SFC) David Essinger as a
witness for the government in presentencing. Sergeant First Class Essinger served
as the First Sergeant in appellant’s unit, a company of about 172 soldiers. After
some introductory questions concerning SFC Essinger’s background as a
noncommissioned officer and the unit’s mission, trial counsel asked SFC Essinger to
“briefly describe how this incident . . . impacted the company in terms of good order
and discipline.” Sergeant First Class Essinger responded that “[t]his problem has
been going on for so long . . . the impact has been . . . some questioning of the
command of the decisions we make . . . .” Sergeant First Class Essinger also
testified that “[t]he perception was that we’re soft on--on the major crimes. It’s
easier for us to go after the small crimes or the small infractions and let go of the
large events.” Trial counsel then asked SFC Essinger to “explain the impact in
terms of man hours stemming from this incident.” Sergeant First Class Essinger
responded that he was forced to move appellant and that “[o]n several occasions the
[noncommissioned officers] of [appellant’s new section] would take several hours
per day overall” dealing with appellant’s case. Sergeant First Class Essinger stated
further that he had tasked a noncommissioned officer to track down “additional
paper through legal, through battalion, through brigade, etcetera” and ultimately
concluded “without hesitation” that nearly 60 man-hours of work were devoted to
appellant’s case. Finally, trial counsel asked SFC Essinger to describe “how often”
he dealt “with drug issues” in the unit, to which SFC Essinger responded, “[w]ithout
question in the last 10 months we’ve dealt with them on a regular basis if nothing
less than once a week the commander and I would have to sit down and either
interview, do a follow up, or deal with a new event in reference to that, sir.” Trial
defense counsel did not object during this testimony. Following this line of
questioning, SFC Essinger testified that he had a negative opinion of appellant’s
potential for rehabilitation.
Trial defense counsel’s cross-examination of SFC Essinger established that,
although CID apprehended appellant on 30 May, the government did not prefer
charges against him until 15 October. In addition, SFC Essinger testified that he
knew appellant offered to plead guilty in November 2007 and agreed that military
justice is a function of the command. Although SFC Essinger agreed that “at some
level” the command controls how fast charges are preferred and brought to trial, his
frustration about the process was not directed at the command.
On redirect examination, trial counsel asked SFC Essinger to “explain the
delay by the command.” SFC Essinger answered that “the commander and I have
very little to do with it” although the command “pushed” and “pressed” for
appellant’s case to move expeditiously.
Sergeant First Class Essinger was the only witness the government called. In
addition to his testimony, the government admitted the stipulation of fact with
several enclosures, including appellant’s confession, Enlisted Record Brief, and
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pictures of the substances at issue, as well as a 79-page Drug Enforcement
Administration Pamphlet called “Drugs of Abuse,” and a Department of Defense pay
chart.
The defense case in extenuation and mitigation consisted of a three-page
“good soldier” packet and two noncommissioned officers’ testimony about
appellant’s good duty performance while deployed to Afghanistan. Appellant also
made a rambling, profanity-laced unsworn statement. 1
Trial counsel’s argument on sentencing requested the military judge sentence
appellant to “15 months confinement, forfeiture of all pay and allowances, reduction
to [E1], and a bad-conduct discharge.” Relying on the testimony of SFC Essinger,
trial counsel argued the sentence was warranted due to the “aggravating impact on
the unit,” including “the man-hours used in dealing with this incident, approximately
60 man-hours, dealing with legal paperwork, counselings, and taking the accused to
and from appointments” and “the crime itself.” Trial counsel also stated that
“[w]e’ve heard the attitude that started to develop within the unit; the command was
soft on crime.” Trial counsel closed his sentencing argument by again asking the
military judge to consider “one, the mission. . . . [t]wo, good order and discipline
. . . to send a message to soldiers of this unit, many of them seated here today, that
the command is not soft on crime; and [t]hree . . . Private Fisher needs to send a
message to himself that his actions cannot be tolerated.” Trial defense counsel did
not object to trial counsel’s argument.
In his argument on sentencing, trial defense counsel addressed some of the
government’s points, and “hope[d] the court would agree . . . the legal process in
this situation is not punishment for the unit because the unit inflicted it. The
command controls the legal process . . . . And so when it takes 9, 10, 11, 12 months
for a case to get to court, that isn’t the fault of the [s]oldier.” Appellant “did
everything that he could to speed this process up. So, when the court is deliberating
on a sentence that should play no part in the sentence, but that should be considered
also as mitigating circumstances in this case.”
The military judge made no comment on the evidence or arguments prior to
announcing the sentence other than to note, as a housekeeping matter, that a three-
page “good soldier” packet was marked as an exhibit and admitted, and he
considered that packet in his deliberations. The military judge sentenced appellant
to the government’s requested sentence.
1
The profanity included appellant’s reference to another NCO as a “j-off,” and a
comment that appellant’s “shit smells better than most of the people in here.”
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LAW
Because trial defense counsel did not object to either SFC Essinger’s
testimony or trial counsel’s argument, the issue is waived or forfeited absent plain
error. United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citing United
States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) and United States v. Powell,
49 M.J. 460, 463-65 (C.A.A.F. 1998)).
To establish plain error, appellant must demonstrate that: (1) there was error,
(2) the error was plain, clear, or obvious, and (3) the error materially prejudiced one
of his substantial rights. Id. at 244 (citing Hardison, 64 M.J. at 281); see also
Powell, 49 M.J. at 463-65 (establishing the plain error test in military
jurisprudence). 2 Appellant bears the burden of demonstrating he meets all three
prongs of the plain error test. Maynard, 66 M.J. at 244.
The Supreme Court has found that an error is “plain” when it is “obvious” or
“clear under current law.” United States v. Olano, 507 U.S. 725, 734 (1993). “Put
another way, an error is ‘plain’ if it is ‘so egregious and obvious’ that a trial judge
and prosecutor would be ‘derelict’ in permitting it in a trial held today.” United
States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001)(citing United States v. Gore, 154
F.3d 34, 43 (2d Cir. 1998)).
Rule for Courts-Martial (R.C.M.) 1001(b)(4) provides:
The trial counsel may present evidence as to any
aggravating circumstances directly relating to or resulting
from the offenses of which the accused has been found
guilty. Evidence in aggravation includes, but is not limited
2
We note our superior court’s holding in United States v. Burton, 67 M.J. 150, 153
(C.A.A.F. 2009) that “an error is not ‘plain and obvious’ if, in the context of the
entire trial, the accused fails to show the military judge should be ‘faulted for taking
no action’ even without an objection.” (quoting Maynard, 66 M.J. at 245). That
case, however, is factually distinguishable because it was tried before a panel of
members, not a military judge alone, and involved the military judge’s sua sponte
duty to provide instructions. In a military judge alone case, like this case, it would
be nearly impossible for an accused to show the military judge “should be faulted
for taking no action” when the military judge is presumed to know the law and apply
the law accordingly, and therefore, is not required to take action in the face of
improper evidence or argument. See generally United States v. Robbins, 52 M.J.
455, 457 (C.A.A.F. 2000); United States v. Erickson, 65 M.J. 221, 224-25
(C.A.A.F.), cert. denied, __ U.S. __, 128 S.Ct. 424 (2007) (rejecting argument that
military judge must act to cure misconduct in judge alone case).
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to, evidence of financial, social, psychological, and
medical impact on or cost to any person or entity who was
the victim of an offense committed by the accused and
evidence of significant adverse impact on the mission,
discipline, or efficiency of the command directly and
immediately resulting from the accused’s offense.
(Emphasis added).
Because evidence in aggravation must “directly relate” to the offenses of
which the accused is found guilty, the rule is a “higher standard than mere
relevance.” Hardison, 64 M.J. at 281 (quoting United States v. Rust, 41 M.J. 472,
478 (C.A.A.F. 1995)(internal quotations omitted)). This includes “evidence of the
natural and probable consequences of the offenses of which an accused has been
found guilty,” but “not every circumstance or consequence of misconduct is
admissible . . . . An accused is not ‘responsible for a never-ending chain of causes
and effects.’” United States v. Stapp, 60 M.J. 795, 800 (Army Ct. Crim. App. 2004),
aff’d, 64 M.J. 179 (C.A.A.F. 2006)(quoting United States v. Witt, 21 M.J. 637, 640
n.3 (A.C.M.R. 1985)); see also Rust, 41 M.J. at 478. “The evidence sought to be
admitted must establish that the offense of which appellant has been found guilty
‘contributed to those effects which the government is trying to introduce in
evidence.’” Id. (quoting Witt, 21 M.J. at 641). “Moreover, appellant’s offense must
play a material role in bringing about the effect at issue; the military judge should
not admit evidence of an alleged consequence if an independent, intervening event
played the only important part in bringing about the effect.” Id. at 800-01 (citing
Rust, 41 M.J. at 478).
DISCUSSION
In its response to the specified issues, the government concedes, and we
agree, that SFC Essinger’s testimony concerning the time devoted to appellant’s
court-martial and trial counsel’s use of this evidence in sentencing argument were
improper. More than that, they were clear, obvious error. Further, SFC Essinger’s
testimony that the delay in appellant’s court-martial caused other soldiers to view
the command as soft on crime was also clear, obvious error, as was trial counsel’s
comment on this testimony in the sentencing argument. Appellant, however, has
failed to convince us that he suffered material prejudice to a substantial right, and
therefore, he is entitled to no relief.
In United States v. Stapp, we addressed the military judge’s admission of
sentencing evidence concerning the effect of the court-martial itself upon the
readiness of the accused’s company. Ultimately, we held that this testimony relating
to the “administrative burden of the court-martial process” is not ordinarily
admissible under R.C.M. 1001(b)(4) because it is not “‘evidence of significant
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adverse impact on the mission, discipline, or efficiency of the command directly and
immediately resulting from the accused’s offense.’” Id. at 801 (quoting R.C.M.
1001(b)(4)). We reasoned that “to conclude otherwise, trial counsel would be able
to argue to the sentencing authority at trial that an accused may be punished more
harshly for the inconvenience of the trial. This would be akin to allowing comment
upon the right to plead not guilty or remain silent, and we cannot countenance such
an unjust outcome.” Id.
Similarly, in this case, the government claimed “the approximately 60 man-
hours, dealing with legal paperwork, counselings, and taking the accused to and
from appointments” was aggravating evidence. Furthermore, the government
presented evidence that the delay in appellant’s court-martial, or the length of time
between the crime and the trial, caused other soldiers to view the command as soft
on crime. In essence, the government argued appellant should be punished more
harshly because of the administrative burdens of “legal paperwork,” the time spent
counseling appellant, and the length of time between the offense and the trial. We
find that this evidence is not properly attributable to appellant because it is not
directly or immediately resulting from the appellant’s offense. 3 Admission of this
testimony and trial counsel’s argument concerning this evidence was clear, obvious
error.
More troubling is the government’s sentencing evidence and argument
alleging the court should take into consideration the hours spent by the command
escorting appellant to and from his legal appointments. This evidence and argument
is inappropriate and casts in an improper and negative light the unquestioned
necessity of appellant’s consultation with his defense counsel and preparation of his
case. Accordingly, we find this evidence is also clear, obvious error.
3
Argument relating to specific deterrence of the wrongdoer, or general deterrence of
those who know of the wrongdoer’s crime and the wrongdoer’s sentence, from
committing the same or similar offenses, is proper. In this case, however, trial
counsel argued an administrative burden of the court-martial process – the length of
time between the offenses and the trial – resulted in the perception that the command
was “soft on crime.” Argument concerning an administrative burden is not proper to
establish specific or general deterrence, and does not directly relate to or result from
the offenses of which the accused has been found guilty. R.C.M. 1001(b)(4). The
processing of a case, at least up until referral, is solely within the government’s
control.
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In Stapp, we granted relief on the sentence due to the military judge’s
erroneous admission of evidence such as that admitted here. 4 Like this case, Stapp
was tried by a military judge alone; however, there is a crucial distinction between
Stapp and appellant’s case. Id. at 799. In Stapp, the trial defense counsel objected
to the improper testimony. Because the defense counsel objected at trial, the
question on appeal was whether the military judge abused his discretion by
admitting the evidence, and, if so, whether the erroneous ruling caused appellant to
suffer material prejudice to a substantial right. Id. at 800. “Erroneous admission or
exclusion of evidence during the sentencing portion of a court-martial causes
material prejudice to an appellant’s substantial rights only if the admission or
exclusion of the evidence substantially influenced the adjudged sentence.” Id.
(citations omitted). Where defense lodges an objection to the admission of
evidence and the judge abuses his discretion by admitting the evidence, as occurred
in Stapp, the burden is on the government to convince the appellate court that
admission of the evidence was harmless. See, e.g., United States v. Pablo, 53 M.J.
356, 359 (C.A.A.F. 2000)(citing United States v. Pollard, 38 M.J. 41, 52 (C.M.A.
1993)). The government could not carry that burden in Stapp.
The landscape is different where, as here, defense counsel lodges no objection
at trial to either the evidence or trial counsel’s use of that evidence in argument. In
fact, instead of objecting, trial defense counsel chose to attack the improper
evidence through effective cross-examination, and to attack the improper argument
through counterargument. Trial defense counsel’s tactical choices effectively
minimized both SFC Essinger’s testimony and trial counsel’s argument. See
generally Maynard, 66 M.J. at 245.
Accordingly, we do not ask in this case whether the military judge abused his
discretion or look to the government to carry its burden under a harmless error
analysis. Rather, under a plain error analysis, we look to appellant to convince us of
all three prongs of the Powell test. Crucially, appellant must convince us that he
suffered material prejudice to a substantial right when he is tried by military judge
alone. Although appellant meets the first two prongs of the Powell test, he fails the
third.
“When the issue of plain error involves a judge-alone trial, an appellant faces
a particularly high hurdle. A military judge is presumed to know the law and apply
it correctly, is presumed capable of filtering out inadmissible evidence, and is
presumed not to have relied on such evidence on the question of guilt or innocence.”
United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000)(citing United States v.
Raya, 45 M.J. 251, 253 (C.A.A.F. 1996)). The same is true when it comes to a
4
We held that Stapp fell “under the doctrine of cumulative error, in which ‘a number
of errors, no one perhaps sufficient to merit reversal,’ in combination necessitate[d]
remedial action.” Id. at 802 (internal citations omitted).
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military judge’s sentence. Hardison, 64 M.J. at 283-84 (stating “the ‘experienced
and professional military lawyers who find themselves appointed as trial judges’ are
assumed to be able to appropriately consider only relevant material in assessing
sentencing”)(citing United States v. McNutt, 62 M.J. 16, 26 (C.A.A.F. 2005)
(quoting United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)). As a result,
“‘plain error before a military judge sitting alone is rare indeed.’” Robbins, 52 M.J.
at 457 (quoting Raya, 45 M.J. at 253).
Similarly, in cases of improper argument, the military judge is presumed to
“distinguish between proper and improper sentencing arguments.” Erickson, 65 M.J.
at 225; See also United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004) (finding
no prejudice and thus no plain error where there is no evidence improper argument
affected the military judge or impacted appellant’s sentence). Moreover, there is no
requirement for the military judge to state on the record that he did not consider
improper argument or evidence; there is no evidence required to trigger the
presumption. See Erickson, 65 M.J. at 224-25 (rejecting argument that military
judge must act to cure misconduct in judge alone case). Comment by the military
judge would only be required if appellant introduced evidence to rebut the
presumption. Id. at 225. 5
Applying these presumptions, neither the fact that the government’s
sentencing case was thin, nor the fact that the military judge adjudged the same
sentence as trial counsel requested are sufficient, alone or in conjunction with each
other, to establish prejudice. We recognize that the government only called one
sentencing witness, SFC Essinger, and the majority of the other sentencing evidence
presented by the government was not persuasive or even aggravating. For example,
the vast majority of the 79-page Drug Enforcement Administration Pamphlet called
“Drugs of Abuse,” was completely irrelevant to the offenses at issue. Similarly,
SFC Essinger’s testimony concerning “how often” he dealt with other “drug issues”
in his unit was irrelevant and improper under the facts of this case. There is nothing
in those facts, including the sentence the military judge adjudged, or anywhere else
in the record, that provides the “clear evidence” required to overcome the strong
presumptions in favor of the military judge. See id. (citing United States v. Mason,
45 M.J. 483, 484 (C.A.A.F. 1997)). There is nothing in the record that
demonstrates the military judge considered the improper evidence or was swayed by
5
There is no requirement for the military judge to note that he did not consider
improper evidence or argument. While not necessary to trigger the presumption that
he knows the law and follows it, a transparent statement by the military judge that
he is not considering improper evidence or argument forcefully moots any potential
issues and, we believe, further increases the perception of fairness in the military
justice system. A military judge stepping in and stopping the presentation of
inadmissible evidence or improper argument is an even more forceful rejoinder and
immediately corrects an errant counsel.
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the trial counsel’s improper argument. See Rodriguez, 60 M.J. at 90; see also
Erickson, 65 M.J. at 225. There is nothing to suggest that the military judge would
have sentenced appellant any differently absent the improper evidence or argument.
See Rodriguez, 60 M.J. at 90. Appellant “also fails to explain how he was materially
prejudiced when he received the protection and benefit of a pretrial agreement that
limited his maximum time in confinement to [ten months] regardless of the sentence
adjudged by the court.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)
(citations omitted).
Appellant’s arguments would carry more weight if trial defense counsel
objected at trial or if this case was tried before members instead of by military judge
alone. See generally Stapp 60 M.J. 795; see also Hardison, 64 M.J. at 284
(“[m]embers are less likely to be able to separate relevant matters and make their
decisions based solely on admissible evidence”)(citing United States v. Wingart, 27
M.J. 128, 136 (C.M.A. 1988)). But neither is the case, and, under the facts
presented, appellant has failed to demonstrate that any improper evidence or
argument materially prejudiced his substantial rights. Therefore, he is not entitled
to any relief.
CONCLUSION
On consideration of the entire record, including consideration of the issues
personally specified by the appellant, we hold the findings and sentence as approved
by the convening authority are correct in law and fact and appellant suffered no
material prejudice to any substantial rights. Moreover, we specifically hold that the
sentence as approved by the convening authority is appropriate. Accordingly, the
findings and sentence are affirmed.
Judge TOZZI and Judge JOHNSON concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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