United States v. Giles

IN THE CASE OF

UNITED STATES, Appellee

v.

Joie L. GILES, Operations Specialist Third Class
U.S. Navy, Appellant

No. 97-0051
Crim. App. No. 95-0903

United States Court of Appeals for the Armed Forces

Argued December 10, 2003

Decided April 15, 2004

EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a dissenting opinion.

Counsel

For Appellant: Major Anthony C. Williams, USMC (argued).

For Appellee: Captain Glen R. Hines, Jr., USMC (argued);
Commander Robert P. Taishoff, JAGC, USN (on brief).

Military Judge: C. R. Hunt

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Giles, No. 97-0051/NA

Judge EFFRON delivered the opinion of the Court.

The present appeal involves the second time we have reviewed

Appellant’s case. At the first trial, a general court-martial

composed of officer and enlisted members convicted Appellant,

contrary to her pleas, of two drug-related attempt offenses in

violation of Article 80, Uniform Code of Military Justice,

[hereinafter UCMJ], 10 U.S.C. § 880 (2000). She was sentenced

to a bad-conduct discharge and reduction to the lowest enlisted

grade. The convening authority approved these results, and the

Navy-Marine Corps Court of Criminal Appeals affirmed in an

unpublished opinion. On appeal, our Court set aside the

findings and sentence on the grounds that the military judge

erroneously denied a challenge for cause, and a rehearing was

authorized. United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998).

Following our decision, a rehearing was conducted before a

special court-martial composed of officer and enlisted members.

Appellant was convicted, contrary to her pleas, of the two

original drug-related attempt offenses under Article 80, as well

as a perjury charge under Article 131, UCMJ, 10 U.S.C. § 931

(2000). She was sentenced to a bad-conduct discharge. The

convening authority approved these results, and the Navy-Marine

Corps Court of Criminal Appeals affirmed the findings and

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sentence. United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim.

App. 2003). Our Court granted review of the following issues:

I. WHETHER THE LOWER COURT ERRED BY
FAILING TO FIND THAT THE MILITARY JUDGE
FAILED TO PREVENT A MANIFEST INJUSTICE
AND ABUSED HIS DISCRETION BY REFUSING
TO SEVER THE PERJURY CHARGE FROM THE
TRIAL ON THE MERITS OF THE ORIGINAL
DRUG CHARGES.

II. WHETHER THE LOWER COURT ERRED BY
FAILING TO FIND THAT THE EVIDENCE OF
APPELLANT’S GUILT TO CHARGE II
(PERJURY) IS LEGALLY AND FACTUALLY
INSUFFICIENT BECAUSE THE GOVERNMENT
FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE FIRST TRIAL HAD BEEN
PROPERLY CONSTITUTED.

For the reasons set forth below, we conclude that the

military judge erred in ruling on the severance motion

referenced in Issue I and on related matters, and that such

errors were prejudicial. See Article 59(a), UCMJ, 10 U.S.C.

§ 859(a) (2000). In light of our holding, we need not address

the remaining questions under Issue II.

I. APPELLANT’S FIRST COURT-MARTIAL

At Appellant’s first court-martial, Appellant was charged

with two offenses, attempted possession and attempted

distribution of controlled substances, both in violation of

Article 80. The prosecution’s evidence consisted primarily of

testimony that Appellant intended to purchase an illegal

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substance. In the course of the trial, Appellant stated that

she had purchased a weight loss ingredient, and she denied that

she believed, suspected, or knew that the item was an illegal

substance. As noted supra, Appellant was convicted of both

offenses by general court-martial, but the conviction was set

aside on appeal.

II. APPELLANT’S SECOND COURT-MARTIAL

1. The relationship between the drug charges and the perjury
charge

After our Court set aside Appellant’s original conviction,

the Government referred the same two drug-related specifications

to a special court-martial. To prevail on the drug-related

specifications, the prosecution was required to convince the

court-martial panel, beyond a reasonable doubt, that Appellant

had purchased a substance with the intent to obtain and

distribute an illegal substance. See Manual for Courts-Martial,

United States (2002 ed.), Part IV, para. 4 [hereinafter MCM].

The Government also added a perjury charge, as follows:

In that Operations Specialist Third Class
Joie L. Giles, U.S. Navy, Transient
Personnel Unit, San Diego, California, on
active duty, having taken a lawful oath in a
trial by general court-martial of United
States v. Giles that she would testify
truly, did, at or near Naval Station
Treasure Island, California, on or about 21
September 1994 willfully, corruptly, and
contrary to such oath, testify falsely in
substance that she did not believe, suspect

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or know that the substance she purchased on
or about 15 March 1994 was lysergic acid
diethylamide, which testimony was upon a
material matter and which she did not then
believe to be true.

To obtain a conviction on the perjury charge, the prosecution

was required to convince the court-martial panel, beyond a

reasonable doubt, that: (1) Appellant took an oath in a court-

martial entitled United States v. Giles (the first court-

martial); (2) the oath was required by law; (3) the oath was

administered by a person authorized to do so; (4) Appellant

willfully testified that she did not believe, suspect, or know

that the substance was an illegal substance; (5) the testimony

was material to Appellant’s first court-martial; (6) the

testimony was false; and (7) Appellant did not believe that the

testimony was true at the time she testified in her first court-

martial. See MCM at Part IV, para. 57.(b).(2).

As a practical matter, the perjury charge was dependent

upon the drug-related specifications. The heart of the charged

falsehood was the allegation that Appellant knew, believed, or

suspected that she had been provided with an illegal substance,

and that she lied when she said that she did not believe,

suspect, or know that the item was an illegal substance. If the

prosecution could not prove the two drug-related specifications

– which required that Appellant knew, believed, or suspected

that she was obtaining an illegal substance -- it could not

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prevail on the perjury charge. The perjury charge was also

dependent upon the record of Appellant’s earlier court-martial.

If the prosecution could not introduce the relevant portions of

an official record of the earlier proceeding, then it could not

prevail on the perjury charge.

The interlocking evidentiary requirements presented

complications not present in a normal rehearing on

specifications of attempted possession or attempted distribution

of illegal drugs. In such a typical rehearing, evidence of an

earlier conviction for the same offense normally would be

inadmissible when the conviction had been set aside on appeal.

See Military Rules of Evidence 401, 403, 609. In the present

case, however, interjection into the proceedings of the separate

perjury charge required the Government to introduce evidence of

a trial in which Appellant was convicted without allowing such

evidence to spill over and prejudice Appellant’s right to a fair

trial on the drug offenses.

2. The severance motion

During pretrial proceedings at Appellant’s second court-

martial, the defense brought this problem to the attention of

the military judge through a motion to sever the perjury charge

from the drug-related specifications. As a matter of policy,

“[o]rdinarily, all known charges should be tried at a single

court-martial.” Rule for Courts-Martial 906(b)(10) discussion

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[hereinafter R.C.M.]. As a matter of law, a party may move for

trial of designated offenses at a separate court-martial through

a motion for “[s]everance of offenses, but only to prevent

manifest injustice.” R.C.M. 906(b)(10).

The military judge agreed with the defense that it was

important to protect the interests of the defense from the

prejudice that would result from placing the prior conviction

into evidence, and sought to accomplish that through an

amendment to the charge sheet. In particular, the military

judge required the Government to amend the charges by deleting

the words “of United States [v.] Giles,” and by striking the

word “general” before “court-martial.” The military judge also

stated that the defense could be protected with a proper

limiting instruction that did not mention that Appellant was the

accused at the prior trial or that she was convicted at the

prior trial. On that basis, the military judge concluded that

severance was not required to preclude a manifest injustice.

3. The motion to restrict the prosecution’s evidence

Following the military judge’s ruling on the severance

motion, the defense then moved to preclude the prosecution from

referring to Appellant’s first court-martial. The military

judge granted the defense motion in part, incorporating the

views he expressed during consideration of the severance motion.

According to the military judge, the prosecution could proceed

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so long as “the government not refer to a conviction, the

government not refer to the prior testimony as being a case

involving U.S. v. Giles, and there’s no reason to refer to it as

being a general court-martial. It could just be referred to as

a court-martial.” The military judge added that the changes

would eliminate the defense concern that the members would

necessarily infer that Appellant was the accused in the prior

court-martial, and would permit them to infer “that the prior

testimony was in someone else’s court-martial.” The

prosecution agreed with the limitations imposed by the military

judge.

The ruling by the military judge on the defense motions

reflected his recognition that there were three potentially

prejudicial aspects of the evidence concerning the prior court-

martial: (1) that it was a general court-martial; (2) that

Appellant was the accused at that court-martial; and (3) that

the prior court-martial convicted Appellant of the same drug-

related specifications that were the subject of Appellant’s new

trial.

4. The impact of the military judge’s ruling on the perjury
charge

During trial on the merits, the prosecution realized that

the prohibition on referring to Appellant as the accused in the

prior court-martial would preclude introduction of evidence

necessary to show the materiality of the alleged false statement

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– evidence critical to an essential element of the charged crime

of perjury. Over defense objection, the military judge modified

his ruling, and permitted the prosecution to refer to Appellant

as the accused in the prior trial. The military judge retained

the prohibition on mentioning that the trial resulted in a

conviction, as well as the prohibition on referring to the prior

trial as a general court-martial. The military judge also

indicated that he would offer limiting instructions at the

appropriate time to address the defense concerns.

5. The limiting instruction

The prosecution subsequently introduced documentary evidence

to prove the perjury charge, including the cover sheet from the

record of the first trial which identified Appellant as the

accused. The document also contained a handwritten black mark,

which redacted the level of court-martial. The document, which

stated that the case was tried in September 1994, contained one

stamp identifying it as a “case before USCMR Panel No. 2” and

another stamp marking it “Received 17 March 1995.”

The military judge instructed the members that the

documentary evidence “has been admitted for your consideration

on the elements of the specification under Charge 2, perjury,

and for that limited perjury charge only.” The military judge

then said: “You are directed that, in making your determination

[with respect to the drug-related specifications], that you may

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not consider that there has been a prior court-martial

proceeding.” He added: “You are also directed that you may not

speculate or draw any inference adverse to the accused regarding

possible results of a prior court-martial proceeding.”

6. Questions from the court-martial panel interpreting the
evidence of Appellant’s prior court-martial

Shortly after the military judge directed the members to

limit their consideration of Appellant’s prior court-martial,

the president of the panel submitted written questions to the

military judge that reflected precisely the type of speculation

that the military judge had sought to discourage through his

instructions. The president’s handwritten note contained the

following series of questions:

1. It is my understanding that a special
court-martial may or may not be a verbatim
report depending upon the sentence
adjudicated. If a discharge is involved a
verbatim report is required. If no discharge
[is] sentenced then it [is] not required by
law to be verbatim. What happen[ed] in the
1994 Special Court[-]Martial[?]

2. Does a five year statute of limitations
apply here?

3. Raise the issue about a speedy trial[?]
[W]hy 4 more years before brought to trial.

4. Why a second court[-]martial over nearly
the same charges – does double jeopardy
apply?

Although the president’s inquiry reflected an understanding

on the part of the panel’s senior member that the first trial

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may well have resulted in a decision to discharge Appellant, the

military judge declined to address the substance of these very

pointed questions. Instead, the military judge simply repeated

his earlier instruction limiting the scope of permissible

consideration with respect to the prior court-martial. He asked

the members whether they understood the instruction, and he

obtained an affirmative response from all members. He repeated

the same instruction prior to deliberations, and obtained

affirmative responses from the members when he asked them

whether they understood the instruction and whether they could

adhere to it.

III. DISCUSSION

Under R.C.M. 906(b)(10), a military judge is required to

grant a severance motion when necessary to avoid a “manifest

injustice.” We review such a decision for an abuse of

discretion. United States v. Duncan, 53 M.J. 494, 497-98

(C.A.A.F. 2000). If the motion has been denied, the appellant

must demonstrate more than the fact that separate trials would

have provided a better opportunity for an acquittal. Id. The

appellant must show that the ruling caused actual prejudice by

preventing the appellant from receiving a fair trial. Id. In

conducting such a review, we apply the test articulated in

United States v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996):

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(1) Do the findings reveal an impermissible crossover of

evidence?

(2) Would the evidence of one offense be admissible proof of

the other?

(3) Did the military judge provide a proper limiting

instruction?

The Government’s decision to try the perjury charge at the

rehearing on the underlying drug-related specifications instead

of ordering a separate trial created a substantial risk of

impermissible crossover. The military judge initially attempted

to address this problem by limiting the prosecution’s use of

perjury evidence. His later modification of that ruling

significantly vitiated its effect, as illustrated by his

interchange with the president of the court-martial panel. The

questions raised by the president of the panel, based on the

evidence admitted under the military judge’s modified ruling,

reflected a well-founded suspicion that Appellant had been tried

previously by a court-martial on the very charges that were now

being considered, and that the prior court-martial had sentenced

her to a discharge.

The pointed questions raised by the president of the panel

should not have come as a surprise to the military judge in

light of the training and experience provided to military

commanders. A military commander is responsible for maintaining

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good order and discipline within his or her unit. Military

commanders not only exercise law enforcement powers, they also

exercise considerable responsibility for the administration of

military justice as forwarding and convening authorities. The

military services typically provide commanders with training in

military justice on a regular basis, both in the field and in

professional military education courses. As a result, it is not

unusual for a commander to become reasonably well-versed in

military law. The questions posed by the president of the

court-martial in this case demonstrated that the senior member

of the panel had a reasonable basis for concluding that

Appellant had been tried, convicted, and sentenced to a

discharge for the same drug-related specifications that were now

under consideration. While the panel member did not know why

another trial was being held, the evidence before the panel and

the instructions of the military judge provided no basis for the

panel member to understand that there had been anything

deficient in the prior verdict.

This is not the case of a surprise development at trial, or

an unanticipated evidentiary ruling in the midst of complex

testimony. The defense twice advised the military judge of

exactly what was going to happen, both in the motion for

severance and in the motion to restrict the prosecution’s

evidence. The defense warned the military judge that

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Appellant’s right to a fair trial on the drug-related

specifications would be undermined by the perjury charge,

because the members would figure out that Appellant was being

tried for the very same charges on which she had previously been

convicted. The questions by the president of the panel

demonstrated that the defense had good grounds for this concern.

Despite these concerns, the military judge permitted the

Government to introduce evidence on the perjury charge under

which the members could reasonably conclude that Appellant had

been tried and convicted in the first trial of the same drug-

related specifications that were before them in the second

trial. They also could reasonably conclude that something had

happened between the first and second trials to convince the

Government that Appellant had lied at the first trial when she

denied that she had knowingly purchased an illegal substance.

Under these circumstances, the perjury evidence was both

irrelevant and highly prejudicial to Appellant’s right to

receive a fair trial on the drug-related specifications. The

instructions by the military judge -- which he repeated without

any meaningful amplification after the president of the court-

martial identified the prejudicial nature of the evidence --

simply told the members to suspend their understanding of the

basic mechanics of the military justice system. As such, the

instructions were insufficient to prevent a manifest injustice.

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Under the facts of this case, the rulings by the military judge

on both pretrial motions and evidentiary objections produced

errors that caused actual prejudice and prevented the accused

from receiving a fair trial.

IV. CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed. The findings and the sentence

are set aside. The record of trial is returned to the Judge

Advocate General of the Navy. Rehearings may be ordered in

accordance with this opinion.

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CRAWFORD, Chief Judge (dissenting):

Military justice strongly disfavors the severance of known

charges. For this reason, a military judge should grant a

severance request only to avoid “manifest injustice.” The

military judge in this case abated the potential for manifest

injustice through a preferred, less drastic remedy than

severance: narrowly restricting the Government’s use of the

perjured testimony, and giving three comprehensive limiting

instructions to the members to focus their consideration of the

testimony. These remedial actions ensured that Appellant did

not suffer manifest injustice from joinder of the two charges at

a single court-martial. Accordingly, I respectfully dissent

from the lead opinion.

There is a “general policy in the military favoring trial

of all known charges at a single court-martial.” United States

v. Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999)(quoting Manual for

Courts-Martial, United States (1998 ed.), Analysis of Rules for

Courts-Martial at A21-53). See also Rule for Courts-Martial

601(e)(2) discussion (“Ordinarily, all known charges should be

referred to a single court-martial.”). Indeed, “unified

sentencing by a court-martial favors joining all known offenses

into a single trial, thus exposing the accused to only one

sentence for his criminal misconduct, rather than a series of

separate sentences.” United States v. Haye, 29 M.J. 213, 215
United States v. Giles, No. 97-0051/NA

(C.M.A. 1989). Nevertheless, an accused may file a motion to

sever charges in order “to prevent manifest injustice.” R.C.M.

906(b)(10). Under this rule, the military judge may sever

charges to avoid “impermissible spillover [of evidence] in

various ways from the proof of one offense into the trial of

another offense” that would otherwise deny an accused the right

to a fair trial. United States v. Duncan, 53 M.J. 494, 497

(C.A.A.F. 2000).

To determine whether severance is required to prevent

manifest injustice, the court considers whether the findings

reflect an impermissible spillover of prejudice from one charge

to the other; whether the evidence of one offense would be

admissible proof of the other; and whether the military judge

provided a proper limiting instruction. United States v.

Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996).

[A]n abuse of discretion will be found only where the
defendant is able to show that the denial of a
severance caused him actual prejudice in that it
prevented him from receiving a fair trial; it is not
enough that separate trials may have provided him with
a better opportunity for an acquittal.

Duncan, 53 M.J. at 497 (quoting United States v. Alexander, 135

F.3d 470, 477 (7th Cir. 1998))(emphasis added). Importantly,

appropriate remedial actions and limiting instructions by the

military judge may abate the prejudicial effect of any

spillover, and thereby prevent manifest injustice. Id. at 498

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(finding no manifest injustice when “the military judge gave

limiting instructions three times to the members to consider

these offenses separately” and “took steps to bifurcate the

presentation of evidence and argument by the prosecution to

avoid the risk of impermissible spillover”); Haye, 29 M.J. at

215 (noting that “particularly with good instructions” the

danger of prejudice is less likely); United States v. Hogan, 20

M.J. 71, 73 (C.M.A. 1985)("chances of [the members] cumulating

the evidence . . . substantially diminished” by proper limiting

instructions from military judge).

Applying these standards to the case at bar, I would find

that even if there was a spillover of evidence, and even if

evidence of the perjury offense would not have been admissible

as evidence of the drug offense, the military judge’s remedial

actions and substantial limiting instructions prevented manifest

injustice. See Duncan, 53 M.J. at 497. Accordingly, I would

hold that the military judge did not abuse his discretion in

refusing to sever the perjury charge from trial on the merits of

the original drug charge.

When Appellant argued at trial that the evidence on the

perjury charge would improperly bolster the Government’s case on

the drug-related offenses, the military judge disagreed.

Nevertheless, the judge expressed his intention to provide the

members with an appropriate spillover instruction, as well as a

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cleansed charge sheet omitting any mention of the following

facts: the Appellant was the accused in the earlier court-

martial proceeding where the perjury occurred; the proceeding

was specifically a general court-martial; and that Appellant was

convicted at that proceeding. The judge later modified this

ruling and permitted trial counsel to explain to the members

that a prior court-martial involving Appellant had taken place,

but forbade counsel to mention that the trial was a general

court-martial or that Appellant had been convicted. In taking

these steps, the military judge restricted the Government’s use

of the perjured testimony at trial, thereby ensuring the

Government divulged to the members extremely limited information

about the first trial.

Moreover, in keeping with his word, the military judge gave

three separate limiting instructions that the evidence of

Appellant’s testimony at her prior court-martial was to be

considered solely for the perjury charge and that the fact that

she had been tried earlier could not be considered for any

purpose in determining her guilt on the current drug-related

offenses. The judge gave the first limiting instruction after

the Government rested its case:

The prosecution has introduced evidence, Prosecution
Exhibit 4, which you will obtain a copy of in just a
moment, containing the accused’s testimony at a prior
court-martial proceeding. There have also been other
references during this trial about that. This

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evidence has been admitted for your consideration on
the elements of the specification under Charge 2,
perjury, and for that limited perjury charge only.

You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding possible
results of a prior court-martial proceeding.

You are directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the
evidence that is submitted before this court, and you
may not consider any other matters whatsoever.

The judge repeated the instruction when the president of

the court proposed questions about the transcript of the

original court-martial. The judge stated:

Now, I’m going to give you an instruction that I’ve
given you earlier in this case. The prosecution,
during this trial, produced evidence, Prosecution
Exhibit 4, containing the accused’s testimony at a
prior court-martial proceeding. There have been other
references to a prior court-martial. This evidence
has been admitted for your consideration on the
elements of the specification under Charge II,
perjury, and for that limited purpose only.

You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding possible
results of a prior court-martial proceeding. You are
directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the

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evidence that is admitted before this court, and you
may not consider any other matters whatsoever.

Do the members understand that instruction?

Affirmative response from all members.

Finally, the military judge gave the limiting instruction a

third time, just prior to member deliberations:

The prosecution has introduced, Prosecution Exhibit 4,
containing the accused’s testimony at a prior court-
martial proceeding. There have been other references
to a prior court-martial. This evidence has been
admitted for your consideration on the elements of the
specification under Charge II, perjury, and for that
limited purpose only.

You are directed that, in making your determination as
to whether the accused is not guilty or guilty of
Specifications 1 and 2 of Charge I, attempted wrongful
possession and distribution of lysergic acid
diethylamide, that you may not consider that there has
been a prior court-martial proceeding. You are also
directed that you may not speculate or draw any
inference adverse to the accused regarding the
possible results of a prior court-martial proceeding.

You are directed that you must base your findings on
Specifications 1 and 2 of Charge I only on the
evidence that is admitted before this court, and you
may not consider any other matters whatsoever.

Do the members clearly understand this instruction?

That’s an affirmative response from all members.

Will the members be able to follow this instruction?

Affirmative response from all members.

The military judge therefore restricted the extent to which

the Government could address Appellant’s first trial. The judge

also gave comprehensive limiting instructions, on three

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different occasions, directing the members that the evidence

from the first court-martial could be considered solely for the

perjury charge, and that the fact that Appellant testified in a

prior court-martial could not be considered for any purpose in

determining her guilt on the current drug-related offenses.

This Court should be “confident that the military members were

able to follow their instructions to consider [the offenses]

separately.” Duncan, 53 M.J. at 498. See United States v.

Orsburn, 31 M.J. 182, 188 (C.M.A. 1990)(noting that absent

evidence to the contrary, we presume the members followed the

judge’s instructions). In short, the judge’s remedial actions,

including his substantial limiting instructions, focused the

members on the proper use of the perjury evidence, and in so

doing abated the prejudicial impact of any spillover. See

Duncan, 53 M.J. at 498.

Based on the general policy in the military against

severance, the combined well-known facts of this case, the

limiting instructions on three separate occasions, and the

members’ affirmative response that they would follow these

instructions, I would dissent.

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