UNITED STATES, Appellee
v.
Dennis R. SAVARD, Master Sergeant
U.S. Air Force, Appellant
No. 10-0334
Crim. App. No. 37346
United States Court of Appeals for the Armed Forces
Argued September 27, 2010
Decided November 8, 2010
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Dwight H. Sullivan, Esq. (argued); Lieutenant
Colonel Gail E. Crawford and Major Anthony D. Ortiz (on brief);
Colonel Eric N. Eklund and Major Shannon A. Bennett.
For Appellee: Major Coretta E. Gray (argued); Gerald R. Bruce,
Esq. (on brief); Colonel Don M. Christensen, Colonel Douglas P.
Cordova, and Lieutenant Colonel Jeremy S. Weber.
Military Judge: Mark L. Allred
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Savard, No. 10-0334/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
erred by failing to hold defense-requested pretrial hearings
before ruling on Appellant’s written motions. We hold that,
when one of the parties so requests, Rule for Courts-Martial
(R.C.M.) 905(h) requires that the military judge hold a hearing
on a written motion. However, any error committed by the
military judge in this case by not holding such hearings was
harmless. We affirm the judgment of the United States Air Force
Court of Criminal Appeals (CCA).
I. Background
While stationed overseas in Korea and Japan, Appellant
falsified several official documents indicating that his wife
and child were living in California, when they were actually
living in the Philippine Islands. Through use of one of those
false documents, Appellant stole military property: allowances
and entitlements. A general court-martial composed of officer
members convicted Appellant, contrary to his pleas, of six
specifications of signing an official document with intent to
deceive and two specifications of larceny. Articles 107 and
121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907,
921 (2006). The convening authority approved the adjudged
sentence: a bad-conduct discharge, confinement for twelve
months, and reduction to the lowest enlisted grade. The CCA
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United States v. Savard, No. 10-0334/AF
affirmed. United States v. Savard, No. 37346, 2010 CCA LEXIS
154, at *13, 2010 WL 4068964, at *15 (A.F. Ct. Crim. App. Jan.
19, 2010) (unpublished).
II. The Law
At any time after the service of charges which have
been referred for trial to a court-martial composed of
a military judge and members, the military judge
may . . . call the court into session without the
presence of the members for the purpose of --
(1) hearing and determining motions raising
defenses or objections which are capable of
determination without trial of the issues raised by a
plea of not guilty.
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006) (emphasis added);
see R.C.M. 905(h). Although Article 39(a) does not require that
the military judge hold a hearing, R.C.M. 905(h) does: “Upon
request, either party is entitled to an Article 39(a) session to
present oral argument or have an evidentiary hearing concerning
the disposition of written motions.”
If a military judge errs by declining to grant an Article
39(a) session under R.C.M. 905(h), an appellant’s convictions
“may not be held incorrect on the ground of an error of law
unless the error materially prejudices the substantial rights of
the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006).
As this is a nonconstitutional error, the Government has the
burden of establishing that the error “did not have a
substantial influence on the findings.” United States v. Diaz,
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United States v. Savard, No. 10-0334/AF
69 M.J. 127, 137 (C.A.A.F. 2010) (citing United States v.
McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)). In evaluating
errors to see if they are harmless, we have employed the Supreme
Court’s test from Kotteakos v. United States, 328 U.S. 750, 764
(1946): “If, when all is said and done, the conviction is sure
that the error did not influence the jury, or had but very
slight effect, the verdict and the judgment should stand . . .
.” See, e.g., United States v. Yammine, 69 M.J. 70, 78
(C.A.A.F. 2010) (findings); United States v. Aleman, 62 M.J.
281, 284 (C.A.A.F. 2006) (sentencing).
III. Depositions
In a March 21, 2008, e-mail and attached motion, Appellant
moved to forbid the depositions of witnesses who resided in the
Philippines. The basis for the motion was the costs Appellant
would incur to fly his Florida-based civilian attorney to the
Philippine Islands for the depositions. Appellant specifically
asked that “the depositions not be permitted to occur unless and
until its objection and motion can be heard and ruled on by the
court (with civilian defense counsel appearing via telephone
from the U.S. in an Article 39(a) session).” In the e-mail,
Appellant’s civilian defense counsel notified the military judge
that he would make himself “available via telephone for an
Article 39(a) session at the court’s earliest convenience.”
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United States v. Savard, No. 10-0334/AF
By order issued on the same day, the military judge denied
the request for an Article 39(a) session and denied the request
to enjoin the prosecution from conducting the depositions. The
depositions were conducted. At trial, the military judge
conducted an Article 39(a) hearing and ruled that the
depositions were admissible.
By timely and specifically requesting the Article 39(a)
hearing, Appellant preserved this issue for appeal. In light of
the compulsory language of R.C.M. 905(h), we conclude that the
military judge erred by refusing to hold the requested Article
39(a) session before rendering his decision to deny the defense
motion to enjoin the Government from deposing witnesses in the
Philippines.
Appellant has not suggested what, if anything, he would
have presented at an Article 39(a) session that would have
convinced the military judge to find that there was “good cause”
to enjoin the prosecution from proceeding with the depositions.
Nor has Appellant asserted before this Court that the military
judge erred in admitting the depositions into evidence, or even
attempted to show prejudice from anything contained therein. We
conclude that there is no possibility that the military judge’s
erroneous decision in denying the hearing could have adversely
influenced his decision or the outcome of the case.
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United States v. Savard, No. 10-0334/AF
IV. Voir Dire Questionnaire
On March 13, 2008, almost a month before trial, Appellant’s
civilian counsel, located in Florida, sent a motion via e-mail
to the military judge in Japan, asking that the detailed court
members be ordered to answer written voir dire questions. The
motion did not include a request for an Article 39(a) session.
The military judge denied the motion the same day, concluding
that Appellant had not made the requisite showing of
particularized need to warrant granting the motion. Appellant
filed a motion for reconsideration on March 26, 2008, that
included a request for an Article 39(a) session. Without
holding an Article 39(a) session on this issue, the military
judge informed the parties on March 27, 2008, that he had
reconsidered the motion but determined that his original ruling
would stand.
At trial, on May 13, 2008, before empaneling the members,
the military judge conducted an Article 39(a) session. All
documents pertaining to this motion were marked and attached to
the record of trial. The military judge reviewed the
questionnaire and advised Appellant’s civilian defense counsel
which questions he would be permitted to ask. On appeal,
Appellant has not objected to the military judge’s decisions
concerning the voir dire questions.
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United States v. Savard, No. 10-0334/AF
Under these circumstances, we need not decide whether the
failure to hold the Article 39(a) session on a motion to
reconsider was error as neither party briefed the issue and, if
it was error, it was harmless. Appellant has not objected to
the military judge’s rulings, and, other than speculating that
the court members would answer more fully and truthfully in
writing, has not established a particular need for written
questions in this case. The military judge’s failure to call an
earlier Article 39(a) session did not affect his decision nor
adversely influence the court members or the outcome of the
case.
V. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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