United States v. Bigelow

UNITED STATES, Appellee

v.

Sean M. BIGELOW, Senior Airman
U.S. Air Force, Appellant

No. 01-0713

Crim. App. No. 33797

United States Court of Appeals for the Armed Forces

Argued February 26, 2002

Decided July 15, 2002

CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.

Counsel

For Appellant: Captain Patrick J. Dolan (argued); Lieutenant
Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
Murphy (on brief).

For Appellee: Major Jennifer R. Rider (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judge: Mary M. Boone

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bigelow 01-0713/AF

Chief Judge CRAWFORD delivered the opinion of the Court.

On November 23 and December 20-23, 1998, Senior Airman

(E-4) Sean M. Bigelow was tried by a general court-martial

composed of officer and enlisted members at Incirlik Air Base,

Turkey. Contrary to his plea, he was found guilty of wrongfully

distributing LSD while receiving special pay, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10 USC

§ 912a. On August 24, 1999, the convening authority approved

the adjudged sentence of a bad-conduct discharge, one year’s

confinement, total forfeitures, and reduction to Airman Basic

(E-1). The Air Force Court of Criminal Appeals affirmed the

findings and the sentence. 55 MJ 531 (2001).

We granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY GIVING A
NONSTANDARD ACCOMPLICE INSTRUCTION CONTRARY TO
THIS HONORABLE COURT’S DECISION IN UNITED STATES
V. GILLETTE, 35 MJ 468, 470 (CMA 1992).

II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY CONCLUDING, CONTRARY TO UNITED
STATES V. GILLETTE, 35 MJ 468, 470 (CMA 1992),
THAT MILITARY JUDGES ARE NOT REQUIRED TO GIVE THE
STANDARD ACCOMPLICE INSTRUCTION WHEN THE ISSUE IS
RAISED BY THE EVIDENCE.

III. WHETHER THE NEARLY NINE MONTHS BETWEEN THE
CONCLUSION OF TRIAL AND THE CONVENING AUTHORITY’S
ACTION AMOUNTED TO UNREASONABLE POST-TRIAL DELAY.

We hold that the military judge did not abuse her discretion by

failing to give the standard instruction in the Military Judges’

Benchbook, Dept. of the Army Pamphlet 27-9 (Sept. 30,

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1996)(“Benchbook”), when she gave an accomplice instruction that

satisfied the requirements of Gillette. We also hold that the

delay prior to the convening authority’s action was reasonable.

FACTS - ISSUES I and II

Since three witnesses who admitted using and possessing LSD

testified they were given LSD at a party by appellant, the

defense counsel at a session outside the presence of the members

asked for the standard Benchbook accomplice instruction.1 The

1
The “standard” instruction referred to in the granted issue, as set forth
in the Benchbook, provides:

You are advised that a witness is an accomplice if he/she was
criminally involved in an offense with which the accused is charged.
The purpose of this advice is to call to your attention a factor
specifically affecting the witness’ believability, that is, a motive to
falsify (his)(her) testimony in whole or in part, because of an obvious
self-interest under the circumstances.

(For example, an accomplice may be motivated to falsify testimony in
whole or in part because of his/her own self-interest in receiving
(immunity from prosecution) (leniency in a forthcoming prosecution)
(______).)

The testimony of an accomplice, even though it may be ((apparently)
(corroborated) and) apparently credible is of questionable integrity
and should be considered by you with great caution.

In deciding the believability of (state the name of the witness), you
should consider all the relevant evidence (including but not limited to
(here the military judge may specify significant evidentiary factors
bearing on the issue and indicate the respective contentions of counsel
for both sides)).

Whether (state the name of the witness), who testified as a witness in
this case, was an accomplice is a question for you to decide. If
(state the name of the witness) shared the criminal intent or purpose
of the accused, if any, or aided, encouraged, or in any other way
criminally associated or involved himself/herself with the offense with
which the accused is charged, he/she would be an accomplice whose
testimony must be considered with great caution.

(Additionally, the accused cannot be convicted on the uncorroborated
testimony of a purported accomplice if that testimony is self-
contradictory, uncertain, or improbable.)

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defense objected to the judge’s proposed accomplice instruction2

and urged her to give the standard Benchbook instruction. They

(In deciding whether the testimony of (state the name of the witness)
is self-contradictory, uncertain, or improbable, you must consider it
in the light of all the instructions concerning the factors bearing on
a witness’ credibility.)

In deciding whether or not the testimony of (state the name of the
witness) has been corroborated, you must examine all the evidence in
this case and determine if there is independent evidence which tends to
support the testimony of this witness. If there is such independent
evidence, then the testimony of this witness is corroborated; if not,
then there is no corroboration.)

(You are instructed as a matter of law that the testimony of (state the
name of the witness) is uncorroborated.)

Benchbook, at para. 7-10.

2
The military judge proposed and subsequently gave the following
accomplice instruction:

You are advised that a witness is an accomplice if he was
criminally involved in an offense with which the accused is
charged. The purpose of this advice is to call to your attention a
factor bearing upon the witness’ believability. An accomplice may
have a motive to falsify his testimony in whole or in part, because
of his self-interest in the matter, that is, a motive to falsify
his testimony in whole or in part, because of an obvious self-
interest.

For example, an accomplice may be motivated to falsify testimony in
whole or in part because of his own self-interest in receiving
immunity from prosecution or some sort of clemency in the
disposition of his case.

Whether or not Airman Basic Beene, [Airman First Class] Herpin, or
Senior Airman Bradley[,] who each testified as a witness, was an
accomplice is a question for you to decide. If Airman Basic Beene,
[Airman First Class] Herpin, or Senior Airman Bradley shared the
criminal intent or purpose of the accused, if any, or aided,
encouraged, or in any other way criminally associated or criminally
involved himself in the offense with which the accused is charged, then
he would be an accomplice.

As I indicated previously, it is your function to determine the
credibility of all the witnesses, and the weight, if any, you will
accord the testimony of each witness.

Although you should consider the testimony of an accomplice with
caution, you may convict the accused based solely upon the testimony of

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argued that the military judge’s proposed instruction weakened

the standard instruction. The military judge reviewed the

standard instruction in the Gillette case and concluded that her

instruction on accomplice testimony would be clearer for the

court members. She also gave the following instruction on

credibility of witnesses:

You have the duty to determine the believability of
the witnesses. In performing this duty[,] you must
consider each witness’ intelligence, ability to
observe and accurately remember, sincerity and conduct
in court, prejudices, and character for truthfulness.
Consider also the extent to which each witness is
either supported or contradicted by other evidence;
the relationship each witness may have with either
side; and how each witness might be affected by the
verdict. In weighing a discrepancy by a witness or
between witnesses, you should consider whether it
resulted from an innocent mistake or a deliberate lie.
Taking all these matters into account, you should then
consider the probability of each witness’ testimony
and the inclination of the witness to tell the truth.
The believability of each witness’ testimony should be
your guide in evaluating testimony and not the number
of witnesses called.

Additionally, the judge instructed the members that all

three accomplices testified under grants of immunity and that

any prior inconsistent and consistent statements of witnesses

could be considered as to their credibility. She omitted the

following admonishment from the standard instruction: “The

testimony of an accomplice, even though it may be apparently

corroborated and apparently credible, is of questionable

an accomplice, as long as that testimony wasn’t self contradictory,
uncertain, or improbable.

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integrity and should be considered by you with great caution.”

The military judge’s instruction admonished the members once

that they must consider the testimony of an accomplice with

“caution,” whereas the standard instruction admonishes the

members twice to consider accomplice testimony with “great

caution.” The military judge’s instruction also omitted the

portion of the standard instruction that covers how to determine

if accomplice testimony is corroborated.

DISCUSSION - ISSUES I and II

Article 51(c), UCMJ, 10 USC § 851(c), requires specific

instructions to be given by the judge. Article 36, UCMJ, 10 USC

§ 836, grants the President the authority to prescribe

“[p]retrial, trial, and post-trial procedures, including modes

of proof” for courts-martial. “[S]o far as ... practicable,”

these rules should “apply the principles of law and the rules of

evidence generally recognized in the trial of criminal cases in

the United States districts courts, but which may not be

contrary to or inconsistent with” the UCMJ.

While the prior Manuals for Courts-Martial contained a

provision concerning accomplice testimony, the present Manual

does not. Paragraph 153a, Manual for Courts-Martial, United

States, 1969 (Rev. ed.), provided:

Also, a conviction cannot be based upon
uncorroborated testimony given by an alleged
victim in a trial for a sexual offense or upon

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uncorroborated testimony given by an accomplice
in a trial for any offense, if in either case the
testimony is self-contradictory, uncertain, or
improbable.

A similar provision also appeared in paragraph 153a, Manual for

Courts-Martial, United States, 1951. However, by 1984, the

President had deleted this from the binding portion of the

Manual and placed it in a non-binding Discussion section. The

Discussion to RCM 918(c), Manual for Courts-Martial, United

States (2000 ed.),3 provides:

Findings of guilty may not be based solely on
the testimony of a witness other than the
accused which is self-contradictory, unless the
contradiction is adequately explained by the
witness. Even if apparently credible and
corroborated, the testimony of an accomplice
should be considered with great caution.

The subject of accomplice testimony is not addressed expressly

in the text of the Manual for Courts-Martial, nor is it

expressly addressed in the text of the Federal Rules of Criminal

Procedure.

While finding “the better practice [is] for courts to

caution juries against too much reliance upon the testimony of

accomplices,” the Supreme Court recognized “there is no absolute

rule of law preventing convictions on the testimony of

accomplices,” even though there is no cautionary instruction,

and did not reverse the trial judge for failure to give such a

3
This version is identical to the one in effect at the time of appellant’s
court-martial.

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cautionary instruction. Caminetti v. United States, 242 U.S.

470, 495 (1917).

Some federal judges, including Chief Judge Bazelon in a

separate opinion, have advocated a mandatory accomplice

instruction and voiced concern that absent such an instruction,

an innocent individual might be convicted. United States v.

Kinnard, 465 F.2d 566, 573 (D.C. Cir. 1972). Additionally,

Judge Learned Hand, in a unanimous opinion, recognized that “in

a close case,” the failure to give such an instruction may “turn

the scale.” United States v. Becker, 62 F.2d 1007, 1009 (2d

Cir. 1933). Seldom, however, has there been a reversal for the

failure to provide such an instruction. Consistent with the

Supreme Court’s opinion in Caminetti, federal courts generally

have affirmed convictions despite the absence of such an

instruction. See, e.g., United States v. Shriver, 838 F.2d 980,

983-84 (8th Cir. 1988); United States v. McGinnis, 783 F.2d 755

(8th Cir. 1986); United States v. Gonzalez, 491 F.2d 1202 (5th

Cir. 1974).

Gillette was the first time we examined instructions on

accomplice testimony since the Manual provisions on the subject

were moved to a non-binding Discussion section. Following the

“better practice” in other federal courts, this Court stated:

[W]henever the evidence raises a reasonable
inference that a witness may have been an
accomplice or claims to have been an accomplice

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of the accused, and upon request of either the
Government or defense, the military judge shall
give the members a cautionary instruction
regarding accomplice testimony. First, the
members shall be instructed how to determine
whether a witness is an accomplice. Second, they
should be given the standard instruction
regarding the suspect credibility of accomplice
testimony.

35 MJ at 470.

Upon reflection, this language may have too broadly

suggested a mandatory requirement for the standard Benchbook

instruction where none existed. The essential holding of

Gillette is that the critical principles of the standard

accomplice instruction shall be given, not necessarily the

standard instruction itself, word for word. Indeed, the

standard instruction may in some cases be an overstatement or an

over-simplification. Appellant has not cited any instructions

from civilian criminal law cases that employ language similar to

the standard Benchbook instruction.

We hold that the military judge did not err in failing to

give the standard accomplice instruction. Her instruction made

it clear to the members that accomplice testimony may be

motivated by self-interest, including receiving a grant of

immunity or clemency. Additionally, she gave a credibility

instruction and an instruction as to one of the witnesses

regarding bad character for truthfulness.

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FACTS - ISSUE III

The pertinent facts are uncontroverted and were assembled

by the Court of Criminal Appeals as follows:

On 14 December 1998, a civilian court reporter
(CR) assigned to the legal office at RAF
Alconbury, England, completed the record of the
initial trial session, held pursuant to Article
39(a), UCMJ, 10 USC § 839(a), on 23 November
1998. A paralegal from the office of the staff
judge advocate (SJA) to the convening authority
(CA), located at Aviano AB, Italy, was assigned
to perform CR duties for the remainder and bulk
of the trial. The appellant’s trial ended on 23
December 1998. The paralegal CR returned to
Aviano AB after the trial, finished transcribing
the record by the end of February 1999, and
mailed the transcribed portion of the record to
the assistant trial counsel (ATC) at Incirlik AB
on 1 March 1999. The CR received the record back
from the ATC on 12 March 1999. The CR
electronically mailed (e-mailed) a copy of the
transcribed portion of the record to the military
judge (MJ) on 15 March 1999. This copy was
likely received by the MJ at her home station,
Ramstein AB, Germany. On 18 March 1999, after
receiving all the documents to be included with
the record, the CR assembled and copied the
record and delivered it personally to the MJ, who
was then at Aviano AB. The MJ returned to
Ramstein AB with the record and reviewed it
there. The MJ then personally delivered the
record to the ATC at Incirlik AB, on 6 April
1999, for correction. On 16 April 1999, the ATC
certified he examined the record pursuant to Rule
for Courts-Martial (RCM) 1103(i)(1)(A).
(Apparently, the trial defense counsel was not
given an opportunity to examine the record
pursuant to RCM 1103(i)(1)(B).) On 21 April
1999, the record was transported to the CR at
Aviano AB for changes consistent with the ATC’s
examination. The CR made the changes and mailed
the record to the MJ on 28 April 1999. The
record was received by the MJ shortly after 10
May 1999. The MJ returned the record for

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additional corrections on 30 June 1999. Those
corrections were made and the MJ authenticated
the record on 8 July 1999. The record is 593
pages long. The SJA completed his recommendation
(SJAR) on 13 July 1999. The appellant
acknowledged receipt of a copy of the SJAR on 19
July 1999 and his trial defense counsel did the
same on 3 August 1999. The defense counsel
response to the SJAR is dated 11 August 1999 and
a request for clemency is dated 12 August 1999.
It was in these two documents that the defense
first raised the issue of unreasonable post-trial
delay. The Addendum to the SJAR is dated 20
August 1999. The CA action is dated 24 August
1999. The time from the end of trial to CA
action is 244 days.

55 MJ at 532-33 (emphasis added)(footnotes omitted).

DISCUSSION - ISSUE III

First, appellant contends that the “nine-month post-trial

delay in this case was never satisfactorily explained, even

after [he] complained about it.” Final Brief at 13. He argues

that it should not have taken the convening authority that long

to take action in his case. Moreover, he argues, this

“inordinate and unexplained” delay substantially prejudiced him

because he “was denied the opportunity for parole -- parole

which probably would have been granted for a non-violent

offender with no prior criminal record.” Id. (According to

appellant, “a prisoner cannot leave on parole until the

convening authority takes final action on his or her case.”) In

fact, the delay in this case has been explained.

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The Court of Criminal Appeals concluded that “the 244 days

taken to prepare the record of trial and to take the necessary

steps leading up to the CA action [are] neither unexplained nor

inordinate.” 55 MJ at 533. The court felt this way because

[t]he trial participants were assigned to three
different bases in three different countries in
Europe. The record was lengthy – four volumes,
totaling 593 pages, and, apparently from the
number of times the MJ returned the record,
contained numerous errors. Records of trial
must report proceedings accurately. RCM
1103(i)(1)(A). In this case, the MJ properly
demanded an accurate record before
authentication. The goal of achieving an
accurate record sometimes requires additional
time from what we would aspire to under optimum
conditions. This is particularly true in our
overseas theaters, where distances and modes of
transportation complicate the effort to achieve
as speedy post-trial processing of cases as
possible.

Id.
The Court of Criminal Appeals then took its analysis a step

further and found that, even if the 244-day-period constituted

unexplained and inordinate delay, appellant still failed to show

specific prejudice. First, the Court of Criminal Appeals

explained:

[H]e alleges he was prevented from applying for
parole under Air Force Instruction (AFI) 31-205,
Corrections Program (21 Jun 1999). We find
nothing in this instruction to support the
appellant’s contention. AFI 31-205, in the form
that existed during the post-trial processing of
the appellant’s case, and as it currently
provides, does not prohibit a prisoner (other than
one sentenced to death and, now also, one

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sentenced to life without the possibility of
parole) from applying for parole at any time.
See AFI 51-205, The Air Force Corrections System,
¶ 10.12 (9 Apr 2001). In arriving at this
conclusion, we have considered an affidavit from
Mr. James D. Johnston, Executive Secretary, Air
Force Clemency and Parole Board (AFCPB), Secretary
of the Air Force Personnel Council, which makes it
clear that nothing prohibits a prisoner from
applying for parole prior to CA action and nothing
prohibits the AFCPB from reviewing a case prior to
such action. Moreover, even if the appellant had
applied for parole, divining the outcome of such
application is speculation, and therefore,
provides no basis for finding specific prejudice.

Id. at 533-34 (emphasis added)(footnote omitted).

We agree with the Court of Criminal Appeals that the 244-

day delay was “neither unexplained nor inordinate,” given the

unusual circumstances in this case.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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