UNITED STATES, Appellee
v.
Juan J. CAMPOS, Seaman
U.S. Navy, Appellant
No. 08-0409
Crim. App. No. 200602523
United States Court of Appeals for the Armed Forces
Argued December 17, 2008
Decided May 8, 2009
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J.,
filed a separate concurring opinion.
Counsel
For Appellant: Major Christian J. Broadston, USMC (argued).
For Appellee: Lieutenant Elliot W. Oxman, JAGC, USN (argued);
Brian K. Keller, Esq. (on brief); Commander Paul C. LeBlanc,
JAGC, USN.
Military Judge: Bruce W. MacKenzie
This opinion is subject to revision before final publication.
United States v. Campos, No. 08-0409/NA
Judge ERDMANN delivered the opinion of the court.
Consistent with his pleas, Seaman Juan J. Campos was
convicted by a military judge of one specification of possessing
child pornography and one specification of receiving child
pornography, both in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2000). At sentencing,
the military judge admitted a stipulation of expected testimony
of a psychologist who had expertise in evaluating and treating
sexual offenders. We granted review to consider whether it was
plain error for the military judge to admit this stipulation
because the expert did not personally evaluate Campos and in the
stipulation he generally opined about minimal and optimal terms
of confinement for a person convicted of possessing child
pornography.
In reviewing this case we have determined that there is a
threshold issue as to whether Campos expressly waived the right
to challenge the admissibility of this expected testimony on
appeal or merely forfeited the issue. We conclude that the
right to challenge the admissibility of the stipulation of
expected testimony was waived at trial which leaves us with no
error to correct on appeal. Accordingly, we affirm the decision
2
United States v. Campos, No. 08-0409/NA
of United States Navy-Marine Corps Court of Criminal Appeals on
the ground of waiver.1
Background
As part of a negotiated pretrial agreement, Campos agreed
to stipulate to the expected testimony of the Government’s
expert witness, Dr. Dale Arnold. At trial, the Government moved
for admission of the stipulation of Dr. Arnold’s expected
testimony, the stipulation of another witness’s expected
testimony, and a stipulation of fact. The military judge then
discussed these stipulations with Campos.
As to the stipulations of expected testimony, the military
judge explained that they represented “an agreement between the
trial counsel, the defense counsel, and yourself that if Doctor
Dale Arnold and ITSN Matthew Steubing were called as witnesses
in this case and sworn, they would testify substantially under
oath as [indicated] within each of [their] stipulations.” The
military judge also explained that entering into the
stipulations of expected testimony did not admit the truth of
the testimony, which could be “attacked and contradicted or
explained in the same way as anyone[] else’s testimony in this
case.” In addition, the military judge explained to Campos that
1
The Court of Criminal Appeals found that admission of the
stipulation of expected testimony was not error. United States
v. Campos, No. NMCCA 200602523, 2008 CCA LEXIS 7, at *5-*6, 2008
WL 160776, at *1-*2 (N-M. Ct. Crim. App. 2009) (unpublished).
We do not reach that issue.
3
United States v. Campos, No. 08-0409/NA
he had the right not to enter into any or all of the
stipulations and none of them would be accepted without his
consent.
Campos indicated that he understood the military judge’s
explanations and the military judge then asked him, “Do you
accept the use of these?” Campos answered affirmatively. The
military judge then asked whether “counsel for both sides desire
to enter into each one of these stipulations.” Both counsel
answered affirmatively. This was immediately followed by the
military judge asking, “Any objection to any of the
stipulations?” Only the defense counsel responded, answering,
“No, Your Honor.” The military judge admitted each of the
stipulations into the record.
Discussion
On appeal to this court Campos has challenged the
admissibility of Dr. Arnold’s expected testimony on a number of
grounds: it violated Rule for Courts-Martial 1001(b)(5) because
Dr. Arnold had no personal knowledge of Campos; it recommended a
specific sentence; and it concerned inappropriate collateral
matters. These objections were not brought to the attention of
the military judge when the stipulation of expected testimony
was introduced at trial so there is a threshold issue in this
case as to whether Campos expressly waived the right to
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United States v. Campos, No. 08-0409/NA
challenge the admissibility of Dr. Arnold’s expected testimony
on appeal or merely forfeited the issue.
“A forfeiture is basically an oversight; a waiver is a
deliberate decision not to present a ground for relief that
might be available in the law.” United States v. Cook, 406 F.3d
485, 487 (7th Cir. 2005). “While we review forfeited issues for
plain error, we cannot review waived issues at all because a
valid waiver leaves no error for us to correct on appeal.”
United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)
(citation and quotation marks omitted); see also United States
v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). In determining
whether a particular circumstance constitutes a waiver or a
forfeiture, we consider whether the failure to raise the
objection at the trial level constituted an intentional
relinquishment of a known right. See Harcrow, 66 M.J. at 156
(citing United States v. Olano, 507 U.S. 725, 733-34 (1993)).
This is not simply a case where testimony came into
evidence without any objection or comment from defense counsel.
If that were the case, we would review for plain error.2 Here
2
Military Rule of Evidence 103(d) allows appellate courts to
recognize plain errors that materially prejudice an accused’s
substantial rights even though defense counsel has failed to
make a timely objection. “The plain error standard is met when
‘(1) an error was committed; (2) the error was plain, or clear,
or obvious; and (3) the error resulted in material prejudice to
substantial rights.’” United States v. Maynard, 66 M.J. 242,
244 (C.A.A.F. 2008) (quoting United States v. Hardison, 64 M.J.
279, 281 (C.A.A.F. 2007).
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United States v. Campos, No. 08-0409/NA
the testimony at issue is from a witness that both parties had
stipulated need not appear at the trial. In addition, prior to
admitting the document into evidence the military judge asked if
there were any objections and defense counsel expressly
indicated that he had none.
Entering into a stipulation of expected testimony is not
necessarily the equivalent of consenting to the admission of the
testimony. See United States v. Glazier, 26 M.J. 268, 270
(C.M.A. 1988) (noting that a stipulation that includes consent
to the admission of the testimony must state so expressly). In
this case, the stipulation of expected testimony amounted to an
agreement between Campos, defense counsel and trial counsel that
if Dr. Arnold were called to testify, he would testify under
oath as reflected in the document. In light of the military
judge’s detailed explanation of the stipulation, Campos’s
agreement to “use of” the stipulation, and defense counsel’s
representation that he desired to enter into the stipulation,
the record clearly reflects that Campos waived any right to
claim error on the ground that Dr. Arnold did not personally
appear to present live testimony.
However, the stipulation itself did not expressly consent
to the admission of the testimony and the colloquy between the
military judge and the parties did not clearly separate the
question of entering into the stipulation from the question of
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United States v. Campos, No. 08-0409/NA
the admissibility of the substance of the testimony. As such,
the more difficult question is whether by answering “no” after
the military judge asked for objections, defense counsel waived
the issue of admissibility.
Many courts have taken the position that where there is no
objection and it is otherwise clear from the record that it was
an intentional relinquishment of a known right, the doctrine of
waiver will apply.3 While circumstances may arise where a “no
objection” statement by a defense attorney is not enough to
demonstrate an intentional relinquishment of a known right, the
record in this case does in fact reflect such a relinquishment.
3
See United States v. Smith, 531 F.3d 1261, 1267 (10th Cir.
2008) (finding waiver where counsel not only represented that he
had no objection to the admission of certain evidence but also
relied on the evidence); United States v. Medina, 427 F.3d 88,
91 (1st Cir. 2005) (finding waiver based on counsel’s persistent
and reasoned refusal of judge’s suggestion to object to
admission of evidence or obtain a cautionary instruction);
United States v. Pittman, 319 F.3d 1010, 1012 (7th Cir. 2003)
(finding waiver on the grounds that counsel affirmatively
represented that he had no objection to admission of the
evidence); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002) (finding waiver where counsel identified an issue by
objecting to it at trial and then deliberately withdrew the
objection); United States v. Cooper, 243 F.3d 411, 416 (7th Cir.
2001) (finding waiver where counsel repeatedly stated that he
had no objection to the admission of evidence despite the
magistrate’s insistence that defense had the right to be heard
on the issue and counsel used the evidence during his opening
statement, cross-examination, and closing argument to bolster
his theory of the case); United States v. Mitchell, 85 F.3d 800,
807-09 (1st Cir. 1996) (finding waiver where there was a direct
inquiry from the judge on the precise issue and an unequivocal
assent from defense counsel); United States v. Yu-Leung, 51 F.3d
1116, 1122 (2d Cir. 1995) (finding waiver when evidence in
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United States v. Campos, No. 08-0409/NA
The record includes an e-mail from defense counsel to Dr. Arnold
that was sent several days before trial in which defense counsel
represented that he “reviewed a document which outlines your
[Dr. Arnold’s] expected testimony” and expressed a desire to
speak with Dr. Arnold over some questions that he had about the
substance of the testimony.
In light of this document, there is no question that
defense counsel had advance notice of the substance of Dr.
Arnold’s testimony, that he reviewed the expected testimony, and
that he considered the impact of the stipulation on his client’s
case. At trial the military judge presented defense counsel
with an opportunity to voice objections to the expected
testimony and counsel responded that he had no objections.
On appeal, Campos has not alleged ineffective assistance of
counsel in this regard and the record does not support a
conclusion that defense counsel’s clear “no objection” response
amounted to anything less than a waiver in the circumstances of
this case.4 Therefore, we conclude that there was a waiver to
object to both the stipulation of expected testimony of Dr.
question was extensively used by the defense and failure to
object constituted a strategic choice).
4
While other courts have held that where the record is unclear
as to whether there was an intentional relinquishment of a known
right the plain error doctrine should apply, the record before
us does not support such an uncertainty. See United States v.
Tobin, 155 F.3d 636, 642 (3d Cir. 1998); United States v. Perez,
43 F.3d 1131, 1136 (7th Cir. 1994).
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United States v. Campos, No. 08-0409/NA
Arnold and to the substance of that testimony. As a result
there is no error for us to review.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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United States v. Campos, No. 08-0409/NA
BAKER, Judge (concurring):
I agree with the Court’s resolution of this case on the
basis of waiver, informed by the longstanding principle that a
military judge is presumed to know the law and act according to
it absent some contrary indication in the record. United States
v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007); United States v.
Raya, 45 M.J. 251, 253 (C.A.A.F. 1996); United States v.
Prevatte, 40 M.J. 396, 398 (C.M.A. 1994). However, the
presumption notwithstanding, I write separately to express some
skepticism that the military judge followed the proscription set
forth in United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989).
I am not confident that the military judge did not defer to the
expert in arriving at the sentence in this case. However, other
than the adjudged sentence, it is equally clear that there is
little in the record to indicate that the military judge, in
fact, failed to adhere to the principles in Ohrt.
A military judge is responsible for, among other things,
ensuring that sentencing is conducted pursuant to certain
fundamental sentencing principles and procedures. See United
States v. Heflin, 1 M.J. 131, 133 (C.M.A. 1975) (noting that a
military judge's “primary judicial responsibility [is] to assure
that a court-martial is conducted in accordance with sound legal
principles”). Two such principles apply here.
United States v. Campos, No. 08-0409/NA
First, witnesses at courts-martial are prohibited from
offering opinions regarding the quantum and quality of
punishment warranted. This function resides solely within the
province of the members or the military judge, depending upon
the chosen forum. “The question of appropriateness of
punishment is one which must be decided by the court-martial; it
cannot be usurped by a witness.” Ohrt, 28 M.J. at 305.
Second, military sentencing is predicated on the concept of
individualized sentencing. United States v. Baier, 60 M.J. 382,
383 (C.A.A.F. 2005); United States v. Mamaluy, 10 C.M.A. 102,
107, 27 C.M.R. 176, 181 (1959). Thus, while military judges may
bring to their deliberations their knowledge of both the law and
human nature, they may not apply sentencing criteria that ignore
the concept of individualized sentencing. Military sentencing
is based on consideration of individualized factors related to
the crime and the character of the offender rather than
generalized sentencing theories or principles, with the concept
of general deterrence being the notable exception. United
States v. Varacalle, 4 M.J. 181, 183 (C.M.A. 1978).
Here, Dr. Arnold offered a minimum sentencing
recommendation to the sentencing authority. Moreover, that
opinion was presented without reference or relationship to
Appellant in particular. Now, it may be sheer coincidence that
the adjudged confinement comports precisely with that
2
United States v. Campos, No. 08-0409/NA
recommended by the expert witness in this case. In light of the
rebuttable presumption that a military judge is presumed to know
the law, absent evidence to the contrary, I must assume that the
military judge would not have relied on the witness’s formulaic
sentencing recommendation in lieu of the specific circumstances
of Appellant’s case. But on the chance that it may not be
coincidence, I write separately here to emphasize the
responsibility of military judges to adhere to the principles of
military justice sentencing when sitting as the sentencing
authority.
3