United States v. Johnson

UNITED STATES, Appellee

v.

Donald R. JOHNSON, Staff Sergeant
U.S. Air Force, Appellant

No. 04-0300

Crim. App. No. 34777

United States Court of Appeals for the Armed Forces

Argued March 2, 2005

Decided September 27, 2005

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

Counsel

For Appellant: Captain John N. Page III (argued); Colonel
Beverly B. Knott, Colonel Carlos L. McDade, Major James M.
Winner, and Major Terry L. McElyea (on brief).

For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs, and
Major John C. Johnson (on brief).

Military Judge: Patrick M. Rosenow

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Johnson, No. 04-0300/AF

Judge BAKER delivered the opinion of the Court.

Contrary to his pleas, Appellant was convicted by members

at a general court-martial for wrongful possession of marijuana

with intent to distribute in violation of Article 112a, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He

was sentenced to a dishonorable discharge, confinement for six

months, forfeiture of all pay and allowances, and reduction to

pay grade E-1. The convening authority approved the sentence as

adjudged but waived the mandatory forfeitures under Article 58b,

UCMJ, 10 U.S.C. § 858b (2000). The United States Air Force

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Johnson, 59 M.J. 666 (A.F. Ct. Crim App. 2000).

We granted review on the following issues:

I

WHETHER IT WAS ERROR FOR THE PROSECUTION TO INTRODUCE,
OVER DEFENSE OBJECTION, APPELLANT’S FINANCIAL RECORDS
FROM JUNE 1998 UNTIL JUNE 1999 AND TO THEN ARGUE THAT
THIS EVIDENCE OF POVERTY CREATED A MOTIVE FOR
APPELLANT TO KNOWINGLY POSSESS MARIJUANA WITH THE
INTENT TO DISTRIBUTE.

II

WHETHER THE MILITARY JUDGE ERRED BY DIRECTING
APPELLANT NOT TO DISCUSS A POLYGRAPH EXAMINATION
DURING HIS UNSWORN STATEMENT WHEN A LIMITING
INSTRUCTION TO THE MEMBERS WOULD HAVE BEEN SUFFICIENT
TO ADDRESS THE MILITARY JUDGE’S CONCERNS WHILE STILL
PRESERVING APPELLANT’S ALLOCUTION RIGHTS.

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III

WHETHER THIS HONORABLE COURT SHOULD DISAPPROVE THE
ADJUDGED FORFEITURES TO ENSURE THE CONVENING
AUTHORITY’S CLEMENCY DECISION TO PROVIDE APPELLANT’S
PAY AND ALLOWANCES TO APPELLANT’S FAMILY IS NOT
FRUSTRATED.

For the reasons that follow, we conclude that the military

judge erred in admitting Appellant’s financial records but that

this error was harmless. Conversely, we conclude that the

military judge did not err in precluding Appellant from

discussing his polygraph results during his unsworn statement.1

BACKGROUND

On June 25, 1999, Appellant, a 30-year-old staff sergeant

(E-5) with twelve years of service, and a friend, Staff Sergeant

(SSgt) Houston, were traveling together in separate vehicles

from Tinker Air Force Base, near Oklahoma City, to Monroe,

Louisiana. They took an exit ramp while passing through Van

Zandt County, Texas, on Interstate 20 and were stopped by local

law enforcement authorities. The facts surrounding this stop

and the subsequent discovery of marijuana in Appellant’s car are

found in the lower court’s opinion:

At approximately 2200, the appellant exited I-20 at
Exit 530. SSgt Houston was traveling immediately
behind him in a separate vehicle. Although
strenuously disputed by the appellant and SSgt
Houston, the evidence indicates, and the military
judge so found, that the appellant was stopped because
1
We have also concluded that the adjudged forfeitures in this case should be
disapproved under the authority of United States v. Emminizer, 56 M.J. 441
(C.A.A.F. 2002).

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he crossed the centerline after entering FM 1255.
Although there were several officers at the scene from
different local law enforcement agencies, only Deputy
Constable Mickey Redwine and his superior, Constable
Jim David Smith were positioned to observe the
appellant’s traffic violation. Constable Redwine, who
was located on the side of the road, observed the
appellant straddle the centerline and then signaled
with a flashlight for him to pull over. SSgt Houston
stopped behind the appellant’s vehicle. There was no
other traffic on the frontage road, other than police
vehicles, and neither the appellant nor SSgt Houston
was driving in an erratic or dangerous manner.

Constable Redwine told the appellant that he was
stopped because he had failed to maintain his lane.
The Constable retrieved the appellant’s license and
registration and asked him if he had any weapons or
drugs. The appellant indicated that he did not and
consented to the search of his car. At this point,
Trooper Bruce Dalme of the Texas Department of Public
Safety stepped in to assist Constable Redwine because
Redwine found himself dealing with both the appellant
and SSgt Houston at the same time. Trooper Dalme and
his partner, Trooper Steven Baggett, had been
patrolling in the area of Exit 530 and were present at
the time the appellant and SSgt Houston were stopped
but these officers were not actually participating in
the drug interdiction operation. Both troopers have
extensive training and experience in drug detection,
including exposure to the smell of marijuana. Trooper
Dalme first engaged the appellant in conversation and
found him “unusually nervous” compared to most
contacts he has with the public in the course of his
duties as a police officer. After speaking with the
appellant, Trooper Dalme “felt there may be something
else going on and [he] asked him if he had anything
illegal in his vehicle.” The appellant replied that he
did not and once again gave consent to search his
vehicle.

Trooper Dalme began his search at the rear of the
vehicle and within about 45 seconds found a box sealed
with tape that was covered by clothes in the rear of
the vehicle. He immediately noticed the strong odor
of marijuana coming from the box and asked Trooper
Baggett to smell it, too. Trooper Baggett confirmed

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the unmistakable, strong odor of marijuana. At that
point, Trooper Dalme directed Canton Police Officer
Michael King to place the appellant under arrest.
Trooper Dalme then opened the box and found three
bricks of compressed marijuana wrapped in cellophane.
The box also contained coffee beans and a plastic bag.
According to testimony at trial, coffee beans are used
to mask the smell of marijuana, which is sometimes
compressed to facilitate its transportation and
concealment in transit . . . . The marijuana seized
from the appellant's car was worth approximately
$17,000.00.

Johnson, 59 M.J. at 669-70.

During the Government’s case, trial counsel introduced for

admission a copy of Appellant’s bank statements covering the

period from June 1998 through June 1999. Trial counsel offered

the records to show that Appellant “had a financial motive or

reason for financial gain” to commit the offense. The records

showed that each month during the twelve-month period, with one

exception, Appellant ran a negative balance for some period

during the month. Also, during one month, April 1999, the

monthly statement indicated that Appellant had a check of $420

returned for insufficient funds despite the fact that he had

overdraft protection on his account. The records do not

reflect, and the Government did not assert at trial, that

Appellant was living beyond his means, was the recipient of

unexplained wealth, had engaged in sudden changes in spending

patterns, or faced imminent and extraordinary financial burden.

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During the defense case, Appellant claimed that he did not

know that the marijuana was in his vehicle. Testifying in his

own behalf, Appellant stated that he was a Mason and claimed

that the box found in his car belonged to an associate of his

named BJ, a fellow Mason. According to Appellant, about a year

prior to his arrest, he had met BJ in Oklahoma City. Upon

meeting him, Appellant discovered BJ was not only a fellow

Mason, but was from his hometown of Monroe, Louisiana. Over the

next year or so, Appellant had casual contact with BJ, seeing

him around at various nightclubs or at the gym. According to

Appellant, he ran into BJ “a lot off an [sic] on.” In June

1999, Appellant planned to drive home to visit family in Monroe.

He testified that on June 23, two days before departing, he ran

into BJ at a gas station. BJ asked him to drop off a box of

clothes to his cousin Junior who lived in Monroe as well.

Appellant told BJ he was not yet sure he would be traveling to

Monroe, and gave BJ his cell phone number so he could call to

ensure Appellant would still be making the trip. Appellant

received a call two days later from BJ asking to meet at the

same gas station. He and BJ met and the two transferred the box

from BJ’s truck bed to the back of Appellant’s vehicle.

Regarding how he would know where to take the box once he

arrived in Monroe, Appellant testified that BJ asked him for a

number at which he could be reached in Louisiana. BJ would pass

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this number to Junior who would in turn contact Appellant upon

his arrival in Monroe.

On the stand, Appellant claimed not to recall BJ’s last

name and stated that he had not asked about Junior’s real or

full name. He also stated that he had not heard from BJ since

receiving the box and being arrested despite his efforts to

locate him.

DISCUSSION

I

Appellant’s Financial Records

Appellant contends that the military judge abused his

discretion by admitting his bank records as evidence of his poor

financial condition for the purpose of showing motive. In

support, Appellant cites United States v. Mitchell, 172 F.3d

1104 (9th Cir. 1999), in which the court concluded in the

context of a prosecution for bank robbery that poverty evidence

alone had negligible probative value and produced a high danger

of unfair prejudice. Id. at 1110. In contrast, the Court of

Criminal Appeals concluded that Appellant’s financial records

were admissible because evidence of financial difficulties may

prove motive to commit a crime. Johnson, 59 M.J. at 674. In

reaching this conclusion, the court noted trial counsel’s

argument that Appellant “was in a difficult financial position

as a result of a number of factors, including a divorce,

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outstanding child support, loans, and overdue bills.

Trafficking drugs simply provided him the opportunity to make a

great deal of money.” Id. at 673.

A military judge’s ruling on admissibility of evidence is

reviewed for an abuse of discretion. United States v. Johnson,

46 M.J. 8, 10 (C.A.A.F. 1997). To be overturned on appeal, the

military judge’s ruling must be “‘arbitrary, fanciful, clearly

unreasonable’ or ‘clearly erroneous,’” United States v. Taylor,

53 M.J. 195, 199 (C.A.A.F. 2000)(quoting United States v.

Travers, 25 M.J. 61, 62 (C.M.A. 1987)), or “influenced by an

erroneous view of the law,” United States v. Sullivan, 42 M.J.

360, 363 (C.A.A.F. 1995); United States v. Owens, 51 M.J. 204,

209 (C.A.A.F. 1999). Thus, two questions arise: was the

evidence of Appellant’s poor financial condition relevant, and

if so, did its probative value substantially outweigh the danger

of unfair prejudice?

The mere lack of money, without more, as proof of motive,

has little tendency to prove that a person committed a crime.

Mitchell, 172 F.3d at 1108-09. “The problem with poverty

evidence without more to show motive is not just that it is

unfair to poor people . . . but that it does not prove much,

because almost everyone, poor or not, has a motive to get more

money. And most people, rich or poor, do not steal to get it.”

Id. at 1109. In short, wherever one falls on the financial

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spectrum, there is a critical distinction between an interest in

having more money and an inclination to engage in wrongdoing to

meet that interest. Thus “[a] mere interest, unconnected with

inclination, desperation, or other evidence that the person was

likely to commit the crime does not add much, in most cases, to

the probability that the defendant committed a crime.” Id.

Whatever marginal probative value impecuniosity alone may

possess, there is too great a risk of raising the impermissible

inference that an accused committed the offense because of his

modest financial means, a description that might apply to many

members of the armed forces, as well as the public at large.

However, where the moving party can demonstrate a specific

relevant link to the offense in question, financial evidence may

be relevant to establish motive. Thus, courts have permitted

financial status evidence in cases where the evidence in

question reflects imminent and dire financial need, unexplained

wealth, or that an accused is living beyond his means. United

States v. Smith, 52 M.J. 337, 341 n.2 (C.A.A.F. 2000)(evidence

of financial condition may be admissible to show an abrupt

change in financial circumstances); see United States v. Weller,

238 F.3d 1215, 1221 (10th Cir. 2001)(financial evidence admitted

to show sudden change in financial status where defendant

possessed a large amount of cash after robbery but had an empty

bank account before); United States v. Fakhoury, 819 F.2d 1415,

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United States v. Johnson, No. 04-0300/AF

1421 (7th Cir. 1987)(financial evidence admitted to show

defendant living beyond his means); United States v. Reed, 700

F.2d 638, 642-43 (11th Cir. 1983)(mere fact of defendant’s

bankruptcy was not admissible to show that defendant had motive

to embezzle where there was no evidence of dire financial

consequences); Davis v. United States, 409 F.2d 453, 458 (D.C.

Cir. 1969)(improper to question defendants about their financial

condition when there was no showing that they lived beyond their

means); United States v. Smith, 181 F. Supp. 2d 904, 908 (N.D.

Ill. 2002)(evidence that bank account drawn down to zero did not

establish financial desperation).

At a session during the trial pursuant to Article 39(a),

UCMJ, 10 U.S.C. § 839(a) (2000), defense counsel objected to the

admission of the financial records asserting that the probative

value of the records was substantially outweighed by the danger

of unfair prejudice. The military judge asked counsel to

“[a]rticulate for me the specific unfair prejudice.” Counsel

responded that the members would be allowed to draw the

inference that “just because [Appellant] did not have a high

balance in his bank account [was] indicative of some motive on

his part” to traffic in drugs. The military judge overruled the

objection.

The Government did not show at trial, and has not shown on

appeal, that Appellant’s records do more than establish a poor

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financial position. The bank records do not show a sudden

change in financial circumstance, an imminent and extraordinary

financial burden, or an accused living beyond his means. What

the evidence shows is that in a twelve-month period Appellant

managed his finances poorly, had bills to pay, and had just

barely enough cash flow to stay above water. These conditions

might describe a broad swath of military members, without

converting such circumstances into motive to transport and

distribute drugs. In short, admission of these records in the

absence of other relevant circumstances to show motive tended to

raise the very presumption the law seeks to preclude, namely,

that “those who are not well-off cannot live within a budget and

that they crave money and will commit crime to obtain it.”

Davis, 409 F.2d at 458. Therefore, we conclude that the

military judge abused his discretion in admitting this evidence,

which was negligibly relevant, if at all, and where the

probative value was outweighed by the danger of unfair

prejudice.

Prejudice

We test the erroneous admission of evidence to determine

whether the error materially prejudiced the substantial rights

of the accused. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

For a nonconstitutional error, the Government must demonstrate

that the error did not have a substantial influence on the

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findings. United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F.

2003). In the case of erroneously admitted Government evidence,

this Court weighs: (1) the strength of the Government’s case;

(2) the strength of the defense case; (3) the materiality of the

evidence in question; and, (4) the quality of the evidence in

question. United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.

1999).

The Government’s case hinged on the three packages of

marijuana totaling seventeen pounds discovered in Appellant’s

vehicle. The police officers who stopped Appellant were able to

detect the smell of marijuana emanating from the box, prompting

its discovery. In addition, the arresting officer testified

that he found Appellant “unusually nervous” at the time he was

pulled over for a traffic infraction. And, as noted above, the

Government sought to demonstrate motive by introducing

Appellant’s bank records for the previous twelve months.

In his defense, Appellant said he lacked knowledge of the

contents of the box he was transporting. He further explained

how he came to possess the box by recounting his chance meeting

with a man named BJ. Appellant claimed to have bonded with BJ.

He testified that their relationship lasted about a year, yet he

was not sure of BJ’s last name and claimed he was unable to find

him after his arrest. Similarly, the individual to whom he was

to deliver the box was someone known to him only as Junior with

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no last name, whom he likewise never heard from after his

arrest. According to Appellant, he had given both BJ and Junior

his telephone number to contact him, but did not have a way to

contact either of them. To buttress his defense, Appellant also

submitted twenty-seven affidavits from a variety of military

members and civilians with whom he had previously served or with

whom he otherwise had had contact over the years. The

affidavits attested to Appellant’s general good character, his

good military character, and his character as a law-abiding

person. The military members ranged in rank from technical

sergeant (E-6) to captain. At least six of these servicemembers

attested to Appellant’s reputation for truthfulness.

Nonetheless, a reasonable trier of fact might well have found

Appellant’s explanation lacking in credibility in light of his

inability to contact or even recall the last name of a man he

bonded with for approximately one year.

Appellant did not contest the validity of the bank records

at issue, which the parties agreed represented twelve months of

Appellant’s banking activity. However, for all the reasons

discussed above, the content of the bank records were of

marginal material value to the Government’s case. Indeed, the

absence of wrongdoing in a prior year might tend to refute the

Government’s theory that someone in Appellant’s financial

position might have a motive to commit a crime for financial

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gain. After all, Appellant’s records reflect the same general

financial condition throughout the preceding twelve months. In

light of the strength of the Government’s case and the

limitations inherent in the defense presentation, we are

skeptical that the financial records would have substantially

influenced military members sitting on Appellant’s court-

martial, who were aware of the ordinary wear and tear of monthly

budgets on modest means. Therefore, we are confident that on

this record, the admission of the evidence of Appellant’s bank

records was harmless.

II

Appellant’s Unsworn Statement

Before trial, Appellant undertook a privately administered

polygraph examination arranged by the defense. The examiner

concluded that Appellant was not deceptive when he denied

knowing that he was transporting marijuana. During his

sentencing hearing Appellant sought to refer to his

“exculpatory” polygraph test during his unsworn statement using

the following language:

Never in my wildest dreams did I ever once imagine
that my life would end here in your hands especially
after I took and passed a polygraph. I was asked
point blank if I knew there was marijuana in the box
to which I responded no. The polygrapher found no
deception with my answers. I was hopeful at that
point that based on the fact that I did pass, I would
not face charges again; however, that was not to be
and now my future is in your hands.

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The military judge ruled that polygraph test results were not

permitted under either Military Rule of Evidence (M.R.E.) 707 or

Rule for Courts Martial (R.C.M.) 1001(c). The military judge

further explained that such information would impeach the

verdict and thus precluded Appellant from including any

reference to the polygraph test results in his unsworn

statement.

On appeal, Appellant argues that his proposed unsworn

statement was not intended to impeach the verdict, but rather

was proper mitigation because it expressed his shock and dismay

at the unexpected turn of events in his life. Moreover,

Appellant argues that this Court’s decision in United States v.

Grill, 48 M.J. 131 (C.A.A.F. 1998), recognized that the right of

allocution is broad and largely unfettered and thus permits an

accused to include such matter in his unsworn statement.

The right of an accused to make an unsworn statement is

long-standing, predating adoption of the UCMJ. Id. at 132.

Among other things, the unsworn statement is an opportunity for

an accused to bring information to the attention of the members

or a military judge, including matters in extenuation,

mitigation, and rebuttal, without ordinary evidentiary

constraints. Such a right is consistent with the UCMJ’s

individualized approach to sentencing. The right of allocution

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has been described as “broadly construed” and “largely

unfettered.” Id. at 133. It is this language that Appellant

brings to the attention of the Court.

However, in Grill, while describing the right of allocution

as largely unfettered, we also stated that while the right was

“generally considered unrestricted,” it “was not wholly

unrestricted.” Id. at 132 (emphasis added) (internal quotation

marks and citation omitted). See also United States v. Tschip,

58 M.J. 275, 276 (C.A.A.F. 2003)(Although the scope of an

unsworn statement may include matters that are otherwise

inadmissible under the rules of evidence, the right to make an

unsworn statement is not wholly unconstrained.) In United

States v. Barrier, 61 M.J. __ (C.A.A.F. 2005), and United States

v. Teeter, 16 M.J. 68 (C.M.A. 1983), we identified specific

limitations on the right of allocution. We also recognized that

the unsworn statement remains a product of R.C.M. 1001(c) and

thus remains defined in scope by the rule’s reference to matters

presented in extenuation, mitigation, and rebuttal.

Polygraph evidence raises particular concerns on

sentencing. First, Appellant’s assertions to the contrary,

“exculpatory” polygraph evidence squarely implicates this

Court’s admonition against impeaching or relitigating the

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verdict on sentencing.2 Teeter, 16 M.J. at 73; United States v.

Tobita, 3 C.M.A. 267, 271-72, 12 C.M.R. 23, 27-28 (1953). This

admonition is based on the principle that an accused is entitled

to vigorously contest his innocence on findings, but is not

entitled to do so on findings and sentencing. Sentencing is

intended to afford the members the opportunity to focus on and

address matters appropriate for individualized consideration of

an accused’s sentence. Appellant’s statement that “[t]he

polygrapher found no deception with my answers. I was hopeful

at that point that based on the fact that I did pass, I would

not face charges again” could not reasonably have been offered

for any reason other than to suggest to the members that their

findings of guilty were wrong. Secondly, we are not persuaded

that this information qualifies in any way as extenuation,

mitigation, or rebuttal under R.C.M. 1001(c).

For these reasons, we hold that the military judge did not

err by precluding Appellant from referencing the results of the

polygraph test during his unsworn statement.

III

The Adjudged Forfeitures

In his action, the convening authority approved the

adjudged forfeitures and waived the mandatory forfeitures for a

2
While we understand the term commonly used in this area is “impeachment of
the verdict,” we prefer to cast the term as a prohibition on “relitigating”
the findings. This avoids any confusion with R.C.M. 923 entitled
“Impeachment of Findings,” which deals with an entirely different issue.

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period of six months. The Court of Criminal Appeals found that

although the adjudged forfeitures were not suspended, modified,

or disapproved, the action reflected the convening authority’s

intent to waive the mandatory forfeitures under Article 58b,

UCMJ, for the benefit of Appellant’s spouse. Further, relying

on declarations in Appellant’s brief, the court also concluded

that Appellant’s spouse had received Appellant’s pay and

allowances for the period in question. Johnson, 59 M.J. at 676.

Nevertheless, the Court of Criminal Appeals found it unnecessary

either to remand for a new action or to disapprove the adjudged

forfeitures. Id.

“[W]hen acting on the sentence, under Article 60 [UCMJ, 10

U.S.C. § 860 (2000)], the convening authority may reduce or

suspend adjudged forfeitures, thereby increasing the

compensation that is subject to mandatory forfeitures, which in

turn may be waived for up to six months for the servicemember’s

dependents under Article 58(b).” United States v. Emminizer, 56

M.J. 441, 445 (C.A.A.F. 2002). Because the convening authority

did neither in this case, an argument could be made that,

technically, the spouse received compensation to which she was

not entitled. We agree with the Court of Criminal Appeals that

this clearly would have been contrary to the intended action.

Therefore, the adjudged forfeitures are disapproved.

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DECISION

The decision of the United States Air Force Court of

Criminal Appeals is affirmed with respect to the findings and

with respect to the sentence only so far as it approves a

dishonorable discharge, confinement for six months, and

reduction to pay grade E-1.

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ERDMANN, Judge (concurring):

I concur. I write separately to disassociate myself

from any implication that United States v. Grill, 48 M.J.

131 (C.A.A.F. 1998), properly expands the scope of pre-

sentence unsworn statements. The right to make an unsworn

statement is specifically defined and limited by the Manual

for Courts-Martial, United States (2002 ed.). The scope of

pre-sentence allocution through an unsworn statement

includes extenuation, mitigation, and matters in rebuttal.

Rule for Courts-Martial 1001(c)(2)(A). See United States

v. Barrier, 61 M.J. ___ (5-6) (C.A.A.F. 2005)(Erdmann, J.,

concurring in the result). Because Johnson’s proposed

unsworn reference to the results of a polygraph test served

to impeach or relitigate the finding of guilt rather than

to extenuate, mitigate, or rebut, the military judge acted

properly in preventing Johnson from referring to the

polygraph examination during the unsworn statement.