United States v. Humpherys

IN THE CASE OF

UNITED STATES, Appellee

v.

Edward A. HUMPHERYS, Staff Sergeant
U.S. Army, Appellant

No. 01-0426
Crim. App. No. 9800141

United States Court of Appeals for the Armed Forces

Argued December 11, 2001

Decided July 23, 2002

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

Counsel
For Appellant: Captain Stephanie L. Haines (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., Major Imogene M.
Jamison, and Captain Mary E. Card (on brief); Lieutenant Colonel David A.
Mayfield, Major Jonathan F. Potter, and Captain Kevin J. Mikolashek.

For Appellee: Captain William J. Nelson (argued); Colonel Steven T. Salata,
Lieutenant Colonel Paul H. Turney, and Captain Tami L. Dillahunt (on
brief); Major Paul T. Cygnarowicz.

Military Judge: Larry R. Dean

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Humpherys, No. 01-0426/AR

Judge EFFRON delivered the opinion of the Court.

A special court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of three

specifications of engaging in nonprofessional social behavior

with trainees in violation of a lawful general regulation,

making a false official statement, sodomy, and two

specifications of adultery, in violation of Articles 92, 107,

125, and 134, Uniform Code of Military Justice (UCMJ), 10 USC

§§ 892, 907, 925, and 934. He was sentenced to a bad-conduct

discharge. The convening authority approved the sentence as

adjudged, and the Court of Criminal Appeals affirmed in an

unpublished opinion.

On appellant’s petition, we granted review of the following

issues:

I. WHETHER THE ASSISTANT TRIAL COUNSEL
VIOLATED THE LEGAL NORMS AND STANDARDS OF
ARMY REGULATION 27-26 AND PROFESSIONAL
ETHICS BY BREACHING MATERIAL ASPECTS OF HER
ATTORNEY-CLIENT PRIVILEGE WITH APPELLANT,
HER FORMER LEGAL ASSISTANCE CLIENT, WHEN SHE
LATER REPRESENTED THE GOVERNMENT PROSECUTING
APPELLANT AND USED MATERIALLY ADVERSE
INFORMATION OBTAINED FROM HER PRIOR
REPRESENTATION OF APPELLANT TO APPELLANT'S
PREJUDICE.

II. WHETHER THE EVIDENCE IS LEGALLY
INSUFFICIENT TO SUPPORT A CONVICTION OF
SPECIFICATION 1 OF CHARGE I (VIOLATING A
LAWFUL GENERAL REGULATION) BECAUSE THE
STATEMENT DOES NOT MEET THE LEGAL DEFINITION

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OF ACTIVITIES PROHIBITED BY THE GENERAL
REGULATION.

III. WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE ALLOWED THE GOVERNMENT TO
PRESENT UNCHARGED MISCONDUCT OF THE ACCUSED
TO PANEL MEMBERS ON THE MERITS.

IV. WHETHER THE MILITARY JUDGE ERRED IN
FAILING TO GRANT APPELLANT'S MOTION FOR A
NEW TRIAL WHERE TWO MEMBERS FAILED TO
DISCLOSE IN VOIR DIRE THAT ONE MEMBER WAS
ANOTHER MEMBER'S SENIOR RATER.1

For the reasons set forth below, we affirm.

I. DISQUALIFICATION OF ASSISTANT TRIAL COUNSEL (Issue I)

A. Factual Background

The charges against appellant, a drill sergeant, were based

on allegations that he engaged in sexual misconduct with several

female trainees in his platoon. Two judge advocates were

detailed to prosecute the court-martial, Captain (CPT) M as

trial counsel, and CPT S as assistant trial counsel. Prior to

trial, defense counsel moved to disqualify CPT S, citing her

prior representation of appellant as a legal assistance

attorney. CPT S’s prior representation of appellant dealt with

child support. Defense counsel alleged that CPT S subsequently

conducted a pretrial interview of appellant's wife in connection

with the current case, in which appellant’s wife “was asked

1
Our initial grant of review, 56 MJ 143 (2001), included a fifth issue, which
subsequently was withdrawn upon appellant’s motion. 56 MJ 229 (2001).

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questions [of] which she believed CPT S[] had prior knowledge .

. . due to her representation of Sergeant Humpherys. In

particular CPT S[] asked . . . [Sergeant Humpherys'] wife about

Sergeant Humpherys’ children from a prior relationship” and his

financial support of the children.

Upon inquiry by the military judge during a pretrial session

under Article 39(a), UCMJ, 10 USC § 839(a), CPT S stated that,

with respect to the prior representation, she remembered

“vaguely something with respect to child support . . . and it

was a Soldiers and Sailors Civil Relief Act issue.”2 She added

that she had no recollection of the details, only of the general

subject matter. With respect to the pretrial interview of

appellant's wife in the present case, CPT S stated that she

asked about the children because the wife was listed as a

sentencing witness and during a prior, unrelated court-martial,

the panel asked about children and child support.

The Article 39(a) session also established that the legal

assistance file generated by CPT S during the prior

representation was still maintained in the Staff Judge

Advocate's (SJA) office. Appellant did not ask the military

judge to examine that file in camera. Neither did appellant ask

the military judge to take any other steps during the Article

2
See 50 USC app. §§ 501-594.

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39(a) session, such as permitting testimony under a protective

order, that would have allowed the accused to place into the

record the specific details of the prior representation.

The military judge denied the defense’s motion to disqualify

CPT S on the following grounds: (1) the charges in the present

case did not relate to the period of time covered by the prior

lawyer-client relationship between appellant and CPT S, nor to

any previous marriage; (2) the evidence did not demonstrate that

the subject matter of the prior representation had any

substantial relationship to any matter in issue in the present

case; and (3) the military judge accepted CPT S’s assertion that

she did not recall the specifics of the prior representation.

The military judge added, however, that he would reconsider the

motion if it became apparent during subsequent proceedings that

there was a connection between the prior representation and the

instant case.

When appellant's wife was called as a defense witness, CPT S

conducted the cross-examination. During that examination,

appellant's wife testified that it was “unthinkable” that her

husband would commit adultery because they attended church

together, their religious beliefs were deeply held, and he loved

her. In response, CPT S questioned appellant's wife “about

adultery, children out of wedlock, and religious and moral views

held by her and appellant.” Final Brief at 12. Appellant

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contends that this was a violation of an ethical duty because

“[t]he obvious implication is that CPT S[] obtained the

information from appellant in her capacity as his lawyer.” Id.

B. Legal Background

Prior representation may lead to disqualification on either

of two independent grounds. First, an attorney may be

disqualified if the current representation is adverse to a

former client, and the prior representation of that client

involved the same or a substantially related matter. See, e.g.,

United States v. Green, 5 USCMA 610, 18 CMR 234 (1955). Second,

an attorney may be disqualified if there is a reasonable

probability that specific confidences from the prior

representation may be used to the disadvantage of the former

client. Islander East Rental Program v. Ferguson, 917 F.Supp.

504, 509 (S.D. Tex. 1996).

The substantial relationship test and the confidential

information test both appear in the ABA’s Model Rules of

Professional Conduct, Rule 1.9(a) and (c), respectively. In

general, the federal civilian courts have adopted Rule 1.9 as

the national standard governing attorneys and their

disqualification. See, e.g., Cole v. Ruidoso Municipal Schools,

43 F.3d 1373, 1383-84 (10th Cir. 1994); In re American Airlines,

Inc., 972 F.2d 605 (5th Cir. 1992); Havens v. Indiana, 793 F.2d

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143, 145 (7th Cir. 1986); In re Corn Derivatives Antitrust

Litigation, 748 F.2d 157, 161-62 (3rd Cir. 1984).

The Army has adopted a modified version of Rule 1.9 to

govern the conduct of its attorneys, as have the other services.3

The Army’s rule prohibits an attorney who has formerly

represented a client in a matter from representing “another

person in the same or a substantially related matter in which

the person’s interests are materially adverse to the interests

of the client unless the former client consents after

consultation[.]” Dep’t of the Army Reg. 27-26, Rules of

Professional Conduct for Lawyers, Appendix B, Rule 1.9(a)(1)

(May 1, 1992). Rule 1.9(a)(2) prohibits an attorney from using

“information relating to the representation to the disadvantage

of the former client except as Rule 1.6 would permit with

respect to a client or when the information has become generally

known.” Id.

Our Court has employed a three-pronged analysis to

determine when former counsel is disqualified from prosecuting a

subsequent case under the substantial relationship test. The

accused carries the burden of demonstrating “(1) the former

representation; (2) a substantial relation between the subject

matter of the former representation and the issues in the later

3
See Dep't of the Navy, JAG Instruction 5803.1B, Enclosure 1, Rule 1.9 (11
Feb. 2000); TJAG Policy Number 26, Air Force Rules of Professional Conduct,
Attachment 1, Rule 1.9 (Feb. 4, 1998).

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action; and (3) the later adverse employment.” United States v.

Rushatz, 31 MJ 450, 454 (CMA 1990)(citing United States v.

Stubbs, 23 MJ 188, 193-94 (CMA), cert. denied, 484 U.S. 846

(1987)); see, e.g., United States v. McCluskey, 6 USCMA 545, 20

CMR 261 (1955)(legal assistance attorney who acquires adverse

information against accused prohibited from serving as

prosecutor in charges arising out of same matter). The accused

must delineate “with specificity the subject matters, issues and

causes of action” which the prior representation and the instant

case have in common. In re American Airlines, Inc., supra at

614.

The substantial relationship test does not require

demonstration of specific confidences that might be used against

the former client. Rushatz, 31 MJ at 454 (“a lawyer cannot

prosecute his former client in the same or a related matter,

even though while acting for that former client he gained no

knowledge which could be used to adversely affect the former

client in a subsequent proceeding”). The test reflects the

importance of preventing not only the impropriety of a dishonest

practitioner, but also the appearance of impropriety when an

honest practitioner places himself or herself in a position of

choosing between conflicting interests. McCluskey, supra at

550, 20 CMR at 266.

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The confidential information test does not require proof of

a substantial relationship. “If, in fact, a client establishes

that confidential information told to a lawyer during a former

representation might be used against the client in the case at

hand, the substantial-relationship test need not be considered

and disqualification will result.” ABA Annotated Model Rules of

Professional Conduct, at 146 (4th ed. 1999) (citing Islander East

Rental Program, 917 F.Supp. at 504); see also ABA Model Rules of

Professional Conduct, Rule 1.9(c). Under the confidential

information test, the accused must demonstrate the specific

confidences related during the prior representation and how they

could be used to the disadvantage of the accused in the

subsequent representation. Evans v. Artek Systems Corp., 715

F.2d 788, 794 (2nd Cir. 1983)(“moving defendants bear the heavy

burden of proving facts required for disqualification”). This

level of proof is designed to avoid speculation about what

communications may have occurred during the existence of the

prior relationship and how such communications might be used in

the instant case.

Military judges possess ample authority to protect the

attorney-client relationship during consideration of

disqualification motions. Their authority includes the power to

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examine evidence in camera, seal records of any Article 39(a)

sessions, exclude unnecessary persons from hearings, and issue

protective orders.

C. Discussion

“A motion to disqualify counsel is the proper method for a

party-litigant to bring the issues of conflict of interest or

breach of ethical duties to the attention of the court.”

Musicus v. Westinghouse Electric Corp., 621 F.2d 742, 744 (5th

Cir. 1980).4 We review a military judge’s denial of a motion to

disqualify trial counsel for an abuse of discretion. United

States v. Hamilton, 41 MJ 22, 23 (CMA 1994).

Appellant contends that CPT S violated the Army’s ethical

rules by prosecuting the court-martial case against her former

legal-assistance client. The critical question before us is

whether appellant has demonstrated that the subject of the prior

representation was substantially related to the case at bar, or

that specific confidential information gained by CPT S during

the prior representation might have been used to the

disadvantage of appellant in the present case.

4
An attorney has an ethical duty to identify conflicts of interest concerning
the attorney’s representation of a client and to take appropriate steps to
decline or terminate representation when required by applicable rules,
regardless of whether a party-litigant has filed a motion to disqualify the
attorney. ABA Model Rule of Professional Conduct 1.16; see also Dep't of the
Army Reg. 27-26, Rules of Professional Conduct for Lawyers, Appendix B, Rule
1.16 (May 1, 1992); Navy JAG Instruction 5803.1B, supra at Rule 1.16; Air
Force Rules of Professional Conduct, supra at Rule 1.16.

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Appellant’s vague assertions during the pretrial hearing --

that the prior case on child custody was substantially related

to the pending court-martial charges of adultery, sodomy,

violation of a lawful general regulation, and making a false

official statement -- failed to provide the necessary

specificity to determine the commonality between the subject

matter, causes of action, or issues in the two cases. Under

these circumstances, the military judge did not abuse his

discretion in ruling that appellant failed to demonstrate a

substantial relationship between the earlier representation and

the present case.

Appellant also has failed to carry the burden of

establishing that the cross-examination of his wife by CPT S was

based upon specific confidential communications between himself

and CPT S during the prior representation. During argument on

the motion to disqualify CPT S, defense counsel made a

perfunctory assertion that CPT S gained information from the

prior representation that could be used against appellant during

this court-martial. CPT S responded by telling the military

judge that she did not remember the specifics of the

representation and that her pretrial questioning of appellant's

wife concerning the children was based on experience with a past

court-martial panel’s interest in financial responsibilities for

dependents. At that point, the military judge offered the

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defense an opportunity to present further evidence on the issue,

but the defense declined the opportunity to rebut CPT S’s

explanation.

Appellant had a number of other opportunities to introduce

evidence showing that the harmful information used during the

cross-examination of appellant's wife was gained through the

prior representation. During argument on the motion, it was

established that the file generated by CPT S during the prior

representation was still in the SJA's office. Appellant could

have asked the military judge to examine this file in camera.

Appellant also could have requested that he be allowed to

testify in a closed hearing with a sealed record. Instead,

appellant merely made the conclusory assertion that this was the

“same type of information appellant disclosed to CPT S[] in her

previous capacity as appellant’s legal assistance attorney.”

There may be cases where it is apparent from the record that the

information could not have been gained except through prior

representation, but this is not such a case. To date, appellant

has taken no action to establish that CPT S’s knowledge was

derived from the earlier representation.

Under these circumstances, the military judge did not abuse

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his discretion in denying the disqualification motion.5 We also

note that during the cross-examination of appellant's wife,

defense counsel did not object or request that the military

judge reconsider his earlier ruling, even though the military

judge had specifically stated he was willing to do so if

circumstances changed.

II. THE UNCHARGED MISCONDUCT (Issue III)

A. The Testimony of Private CA and Private F

1. Background

At a pretrial session under Article 39(a), supra, defense

counsel moved in limine to exclude portions of the anticipated

testimony of Private (PVT) CA and PVT F on the ground that it

contained inadmissible evidence of uncharged misconduct. The

defense objected to PVT CA's anticipated testimony that, after

appellant observed her dancing erotically, he later asked her,

in his office and in the presence of PVT R, if she would dance

for him in that manner.6 The defense also objected to PVT CA's

anticipated testimony that, on a separate occasion, appellant

5
Although we conclude that the military judge did not abuse his discretion
under the particular circumstances of the present case, we note that the
practice of detailing former legal-assistance attorneys to prosecute their
former clients is fraught with difficulties and may lead to litigation that
does not reflect well on the military justice system. This practice should
not be encouraged.

6
PVT R was a trainee in appellant’s platoon. The charges against appellant
included engaging in adultery and an unlawful nonprofessional relationship
with PVT R.

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asked her if she would have “gotten with him” if he were

younger. The defense objected to PVT F's anticipated testimony

that appellant told her, "You're pretty," and made other

comments similar to his remarks to PVT CA. The defense argued

that the testimony at issue did not "meet the requirements under

Rule 404(b) and that the only use of this testimony would be for

the prejudice of Sergeant Humpherys and to [incite] the panel."

The prosecution offered two theories in support of the

admission of PVT CA's and PVT F's testimony. First, that the

testimony showed "a course of conduct by the accused of making .

. . flirtatious and complimentary comments to trainees.”

Second, that it demonstrated a remark appellant allegedly made

to PVT P -- that he heard she had "jungle fever" -- "was made

with a non-innocent intent." See Part III, infra.

The military judge conducted a detailed inquiry into the

purpose of this testimonial evidence. During that inquiry,

defense counsel acknowledged that a probable defense would be

that appellant had an official purpose for making the "jungle

fever" statement to PVT P in connection with an investigation

conducted by several of the drill sergeants concerning letters

written by female trainees to male trainees in a different

platoon.

Based on the understanding of both trial counsel and

defense counsel, that appellant's intent in making the remark to

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PVT P would be a critical fact in dispute, the military judge

ruled that the testimony of both PVT CA and PVT F provided

relevant circumstantial evidence of a non-innocent intent. The

military judge also ruled that the prejudicial effect of the

evidence was substantially outweighed by its probative value,

and that any prejudicial effect could be ameliorated through a

limiting instruction. The military judge did not articulate the

basis for his ruling. Based on these rulings, he conditionally

admitted the evidence, subject to change if the evidence did not

emerge as anticipated.

In her later testimony, PVT CA testified generally as

anticipated. She testified that appellant had complimented her

and told both her and PVT AA "that we were very pretty."7 She

also related an incident in which, without knowing that

appellant was observing, she had been dancing erotically in the

bay while "fooling around with a bunch of

girlfriends." Later, appellant asked her if she would dance

privately for him. Additionally, she testified that, while

talking with appellant about her physical training test,

appellant told her she "would pass it and not to be stressed out

over it." He then "rubbed his finger under [her] chin and told

7
PVT AA also was a trainee in appellant’s platoon. The charges against
appellant included engaging in adultery and an unlawful nonprofessional
relationship with PVT AA.

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[her] to smile. And he had also said if he was younger would

[she] get with him. . . ."

PVT F testified about an incident in which appellant had

counseled her "that the way [she] walked was inappropriate for

the environment that [she] was in." Appellant followed up that

comment by asking PVT F whether she "had ever been told that

[she] was attractive."

The military judge gave a limiting instruction to the

members as to the permissible use of the testimony by PVT CA and

PVT F. He advised the members that the evidence "may be

considered by you for the limited purpose of its tendency if any

to prove a plan, design or intent on behalf of the accused to

engage in a nonprofessional social relationship and also to

prove that the accused did not have either an official purpose

or innocent intent regarding his questioning of Private P[]."

Neither counsel objected to this instruction.

2. Discussion

We review a military judge’s decision to admit evidence for

an abuse of discretion. United States v. Ayala, 43 MJ 296, 298

(1995). The “judge abuses his discretion if his findings of

fact are clearly erroneous or his conclusions of law are

incorrect.” Id.

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"[E]vidence which is offered simply to prove that an

accused is a bad person is not admissible" under Mil.R.Evid.

404(b), Manual for Courts-Martial, United States (2000 ed.).8

United States v. Reynolds, 29 MJ 105, 109 (CMA 1989).

Mil.R.Evid. 404(b), however, is a rule of inclusion, not

exclusion. “[T]he sole test under Mil.R.Evid. 404(b) is whether

the evidence of the misconduct is offered for some purpose other

than to demonstrate the accused’s predisposition to crime ....”

United States v. Tanksley, 54 MJ 169, 175 (2000)(quoting United

States v. Castillo, 29 MJ 145, 150 (CMA 1989)). As the Supreme

Court stated when speaking of Mil.R.Evid. 404(b)'s counterpart,

Fed.R.Evid. 404(b): "The threshold inquiry a court must make

before admitting similar acts evidence under Rule 404(b) is

whether that evidence is probative of a material issue other

than character." Huddleston v. United States, 485 U.S. 681, 686

(1988). In addition to having a proper purpose, the proffered

evidence must meet the standards of Mil.R.Evid. 104(b), 402, and

403. See Reynolds, 29 MJ at 109.

Reflecting the combined requirements of these rules, our

Court applies a three-pronged test for determining admissibility

of other-acts evidence under Mil.R.Evid. 404(b). See id. We

evaluate: (1) whether “the evidence reasonably supports a

8
All Manual provisions cited are identical to the ones in effect at the time
of appellant's court-martial.

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finding by the court members that appellant committed prior

crimes, wrongs or acts”; (2) “[w]hat fact of consequence is made

more or less probable by the existence of this evidence”; and

(3) whether “the probative value [is] substantially outweighed

by the danger of unfair prejudice[.]” Id. (internal quotations,

ellipses, and citations omitted); see also Tanksley, 54 MJ at

176-77. "If the evidence fails any of the three tests, it is

inadmissible." United States v. Cousins, 35 MJ 70, 74 (CMA

1992); accord Reynolds, 29 MJ at 109.

Under the Reynolds analysis, the military judge did not

abuse his discretion by admitting the testimony of PVTs CA and

F. First, there was more than sufficient evidence for the

members to conclude that appellant made the statements to PVT

CA. In addition to her testimony, the incidents were confirmed

by PVT AA and PVT R during their testimony regarding appellant’s

initiation of sexual activity with them. PVT F's testimony in

this regard was brief but straightforward and would reasonably

support a finding by the members that appellant made the

statement in question.

Second, the evidence was relevant to a fact in issue. See

Mil.R.Evid. 401. After a detailed inquiry into the matter, the

military judge established through defense counsel that a

probable defense to the charge involving PVT P was that the

statement to PVT P was made for an official purpose. The

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military judge admitted the testimony of PVTs CA and F as

evidence of appellant’s intent in making the "jungle fever"

remark to PVT P, and he stated that his pretrial ruling was

subject to change if the development of the case demonstrated

that intent was not in issue.

Proving intent is a proper purpose for admitting extrinsic-

acts evidence. Mil.R.Evid. 404(b). Appellant's intent in

making the jungle fever remark to PVT P clearly was in issue and

was a fact of consequence. His inappropriate comments to other

trainees, in an effort to initiate unlawful sexual activity,

made it more probable that his comment to PVT P was not made

with innocent intent. “Extrinsic acts evidence may be critical

to the establishment of the truth as to a disputed issue,

especially when that issue involves the actor’s state of mind

and the only means of ascertaining that mental state is by

drawing inferences from conduct.” Tanksley, 54 MJ at 176

(quoting Huddleston, 485 U.S. at 685).

Finally, with respect to danger of unfair prejudice under

Mil.R.Evid. 403, we note that the military judge has “wide

discretion” in applying the rule, and this Court exercises

“great restraint” in reviewing a military judge’s 403 ruling if

his reasoning is articulated on the record. United States v.

Harris, 46 MJ 221, 225 (1997)(citing Government of the Virgin

Islands v. Archibald, 987 F.2d 180, 186 (3rd Cir. 1993)). When

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the military judge fails “‘to explain the grounds for denying a

Rule 403 objection,’ his ruling is not entitled to such

deference.” Id. (quoting Archibald, supra). Although the

military judge in the present case did not articulate his

reasons for concluding that any prejudicial effect of the

testimony did not substantially outweigh its probative value, we

may determine that the record permits us to conduct the required

balancing during appellate review. Based on the record in the

present case, we conclude that the danger of unfair prejudice to

appellant's interests did not substantially outweigh the

probative value of the extrinsic-acts evidence in proving

intent, particularly in light of the degree to which the record

otherwise corroborated the testimony of PVT CA and PVT F. We

note that during the prosecution's closing argument on the

merits, which covers 22 pages in the record of trial, the

assistant trial counsel never mentioned the testimony from PVT

CA or PVT F. In light of the military judge’s “clear, cogent,

correct, and complete instructions to the court members

regarding the use of [both witnesses'] testimony,” appellant has

not demonstrated unfair prejudice. Tanksley, 54 MJ at 177.

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B. The Testimony of Private Q and Private F and Appellant’s
Sworn Statement

1. Background

Appellant, in his brief before our Court, obliquely

challenges admission of his sworn statement to investigators and

the testimony of PVTs Q and F during the Government's case in

rebuttal. At trial, when the prosecution offered appellant's

statement into evidence at the close of its case-in-chief,

defense counsel objected to the first page of the document. On

that page, appellant answered questions about why he took four

female trainees, including PVTs Q and F, with him in a van at

12:10 a.m. to go to the hospital to pick up two other soldiers,

in violation of local installation regulations. The defense

argued that this evidence of misconduct was not relevant to any

of the charges or, alternatively, that the danger of unfair

prejudice substantially outweighed its probative value. See

Mil.R.Evid. 402 and 403.

The prosecution argued that the sworn statement was

admissible evidence of appellant’s course of conduct in

"soliciting and engaging in improper behavior with trainees," in

violation of local regulations, and that it rebutted the

testimony of Sergeant First Class (SFC) Jones. SFC Jones, an

earlier prosecution witness, had been adopted as a defense

witness during cross-examination. During that cross-

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examination, SFC Jones testified that he had a high opinion of

appellant as a drill sergeant and non-commissioned officer and

that appellant followed regulations in his training methods.

The military judge admitted the sworn statement as “fair

rebuttal testimony of whether the accused complies with Fort

McClellan regulation ....”9

Subsequently, during the prosecution's case in rebuttal,

trial counsel offered the testimony of PVTs Q and F to relate

the circumstances leading up to and during this trip in the van.

When PVT Q began to describe the details of the trip, defense

counsel objected on grounds of relevance. Trial counsel

responded that it was offered "[t]o rebut the assertion by the

defense that he does not treat females differently from males."

After the military judge indicated that he was "going to allow

some leeway on the questions if [trial counsel got] directly to

9
The separate opinion suggests that appellant “opened the door” for admission
of this evidence. There is a split in authority as to whether an improper use
of extrinsic acts by the defense in such circumstances opens the door to
rebuttal by the prosecution. Compare United States v. Benedetto, 571 F.2d
1246, 1250 (2nd Cir. 1977) (rebuttal not permitted), with Ryan v. Board of
Police Commissioners, 96 F.3d 1076, 1082 n.1 (8th Cir. 1996) (permitting
rebuttal); see also United States v. Reed, 44 MJ 825, 826 (A.F.Ct.Crim.App.
1996). Resolution of this matter is not necessary in the present case. The
testimony of SFC Jones concerning appellant’s characteristics as a non-
commissioned officer was offered as opinion testimony, not as a specific
instance of conduct. Moreover, the testimony did not state that appellant
complied with all standards of conduct. The testimony was focused
specifically on his reputation as a drill sergeant, noting that he used a
training method specified in a training regulation. Therefore, even if the
defense testimony were treated as specific acts evidence showing that
appellant used a prescribed training technique, it would not have opened the
door for evidence showing that appellant engaged in misconduct in violation
of a different regulation. See United States v. Martinez, 988 F.2d 685, 702
(7th Cir. 1993) (evidence must directly contradict evidence previously
received).

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the point," PVT Q proceeded briefly to relate that appellant had

invited the four trainees to accompany him to the hospital in

the van and the nature of the "very relaxed" atmosphere during

the trip. She also testified that appellant had told them "not

to tell anybody" about the trip. Trial defense counsel objected

to the testimony of PVT F on this subject on the ground that it

was “cumulative at best.”

2. Discussion

Appellant contends that his sworn statement and the

testimony of PVTs Q and F were improperly admitted under

Mil.R.Evid. 404(b). The military judge did not rely on Rule

404(b) but, instead, admitted both the sworn statement and the

testimony as rebuttal evidence in response to appellant’s “good

soldier” defense. Mil.R.Evid. 404(a)(1) allows the accused to

present evidence of his good military character if that trait is

pertinent to the charged offense. The rule also allows the

Government to present character evidence in rebuttal of the

good-military-character evidence presented by the defense.

To the extent that there was an error, it occurred as a

result of the Government’s method of rebutting appellant’s good-

soldier defense. Extrinsic evidence of prior acts of misconduct

is not admissible to rebut opinion evidence of good military

character. See United States v. Pruitt, 46 MJ 148, 151 (1997);

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United States v. Humpherys, No. 01-0426/AR

United States v. Reed, 44 MJ 825, 826 (A.F.Ct.Crim.App. 1996).

Normally, the prosecution tests such opinion evidence through

cross-examination "into relevant specific instances of conduct."

Mil.R.Evid. 405(a). That procedure was not followed in the

present case.

In assessing whether the error materially prejudiced a

substantial right of appellant, see Art. 59(a), UCMJ, 10 USC

§ 859(a), we note that the error here was in the method used to

present rebuttal evidence concerning his claimed good military

character, not in the nature of the evidence itself. The

prosecutor would have been permitted to cross-examine

appellant's character witnesses concerning this incident under

Mil.R.Evid. 405.

We also note that the military judge properly instructed

the members on the limited use of this evidence. He emphasized

that the members could consider the evidence of the hospital

trip "for the limited purpose if any that it had to refute the

defense[] that w[as] raised by the accused that . . . the

accused is a good soldier." The limiting instruction properly

guarded against misuse by the members of the evidence of

specific acts. United States v. Tyndale, 56 MJ 209, 216

(2001)(citing United States v. Holt, 33 MJ 400, 408 (CMA 1991)).

In short, the question before us is whether appellant was

prejudiced from admission of certain evidence, when the nature

24
United States v. Humpherys, No. 01-0426/AR

of that evidence would have been admissible through a different

vehicle and when the military judge properly limited the use to

which the members could put it. “An evidentiary error may be

harmless when evidence of the guilt of the accused is

overwhelming.” Pruitt, 46 MJ at 151. We find that the evidence

in this case overwhelmingly supports the charges.

Appellant was convicted of two specifications of adultery,

one specification of sodomy, three specifications of violating a

lawful general regulation, and one specification of making a

false official statement. All of these charges, except

specification 1 of Charge 1 (violation of a lawful general

regulation by making the jungle fever remark to PVT P) arose

from appellant’s misconduct with PVTs AA and R and were

addressed in his statement given to investigators. Both of

these privates testified at trial and confirmed that they had

sexual relations with appellant. Further, both confirmed that

on several occasions, they had sexual relations with him

simultaneously. Finally, several soldiers testified that PVTs

AA and R had discussed appellant’s sexual contact with them

during the training cycle. We reach a similar conclusion with

respect to specification 1 of Charge I -- the sufficiency of the

evidence to support appellant's conviction for violating a

regulation by making the "jungle fever" remark to PVT P. See

Part III, infra.

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III. LEGAL SUFFICIENCY OF THE EVIDENCE (Issue II)

A. Background

Appellant challenges the legal sufficiency of the evidence

supporting his conviction of violating a lawful general

regulation by saying to PVT P that he heard she had “jungle

fever.” The Government charged appellant with violating Fort

McClellan Regulation 632-1, Section III, paragraph 8(e)(9),

which prohibits attempting to or soliciting a trainee to engage

in nonprofessional behavior.10 The Government’s theory at trial

was that appellant’s “jungle fever” remark was intended to test

PVT P’s reaction and determine if she was amenable to having

inappropriate sexual relations with him. The nature of

the "jungle fever" remark and appellant's intent in making it

are at the heart of this charge.

10
Fort McClellan Regulation 632-1, Section III, paragraph 8(e), states:

[n]onprofessional social behavior includes, but is not limited
to--

(1) Dating.
(2) Any type of sexual activity.
(3) Any touching of a sexual nature.
(4) Hugging.
(5) Kissing.
(6) Handholding or physical caressing.
(7) Drinking of alcoholic beverages with trainees or
receptees.
(8) Meeting privately with trainees or receptees for any
purpose of entertainment, dining, recreation, sport, or
intimacy.
(9) Attempting or soliciting to do (1) through (8) above.

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United States v. Humpherys, No. 01-0426/AR

PVT P described the circumstances under which appellant

made the remark. She testified that appellant told her that the

other trainees were talking about her and asked her if she

wanted to know what they were saying. PVT P said she did not,

and she left. Shortly thereafter, appellant approached her

again, with PVT Q at her side, and told her that the trainees

were saying that she "had Jungle Fever." When appellant asked

her if she knew what that meant, she said she did not. Later,

she learned from other trainees that it was a slang reference to

interracial sexual relations.

According to PVT P, appellant subsequently approached and

asked her if she "figured out what it had meant." When she told

him that she had, he asked if it offended her. Trial counsel

asked, "And when he asked if that offended you, what did you

take that to mean?" PVT P responded: "Meaning if I was

attracted to or if I liked black men."

PVT Q corroborated PVT P's testimony. She stated that,

when appellant made the "jungle fever" remark to PVT P, he

turned to PVT Q and asked her if she knew what it meant. When

PVT Q said she did not, appellant "just like smiled like oh,

they don't know what that means, and then he just said carry

on."

Other witnesses testified as to the inappropriateness of a

drill sergeant using the term "jungle fever" to a trainee.

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United States v. Humpherys, No. 01-0426/AR

Staff Sergeant (SSG) Alston said that such a remark was "not

professional" and that "[y]ou don't talk to trainees that way."

He opined that "a good NCO or drill sergeant [would not] ask a

trainee about their [sic] romantic or sexual interests" and

would not "ask them what race they would prefer to have a

romantic relationship with." SFC Mundy agreed that he would

never ask a trainee about her sexual preference or get involved

in a conversation with a trainee about her romantic interests.

B. Discussion

Appellant does not dispute that the term "jungle fever" was

used to describe sexual preferences of trainees. He contends,

however, that under the specific prohibitions of the regulation

in issue, there was no offense. He states: "Assuming that [he]

said to PVT P[] that 'he heard she had jungle fever,' such a

statement cannot reasonably be construed as an attempt or

solicitation to date, engage in any type of sexual activity,

touch her in a sexual nature, hug, kiss, hold her hand, drink

alcohol, or meet privately with her for purposes of

entertainment, dining, recreation, sport, or intimacy." Final

Brief at 14. He contends: "Private P[] in fact indicated that

she did not even know what the term 'jungle fever' meant when

first asked. . . . [He] simply told PVT P[] what other privates

had been saying about her, i.e., that she had 'jungle fever.'

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United States v. Humpherys, No. 01-0426/AR

[He] therefore cannot be guilty of a violation of this

regulation when he did not attempt or solicit PVT P[] in any

manner." Id. at 14-15.

The test for legal sufficiency of the evidence is “whether,

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all the

essential elements beyond a reasonable doubt.” United States v.

Turner, 25 MJ 324 (CMA 1987)(citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

The Government contended at trial that appellant made the

remark to solicit a non-professional relationship with PVT P.

The Government argued that appellant's inappropriate comments to

other trainees, which preceded a number of adulterous

relationships, underscored this intent. The Government’s theory

was that he made inappropriate comments as a way of testing the

reactions of the trainees to determine if he could pursue a

relationship with a particular trainee. The ultimate question

is whether, in view of all the circumstances, a rational finder

of fact could have agreed with this theory and could have found

all the elements of the offense. See United States v. Brown, 55

MJ 375, 385 (2001).

While appellant equivocates in his brief as to whether he

made the remark, the testimony of PVT P, corroborated by PVT Q,

provides legally sufficient evidence to support the finding that

29
United States v. Humpherys, No. 01-0426/AR

he did so. See Jackson, supra. As to his intent in making the

remark, the Government presented the testimony of PVTs CA, AA,

and R as evidence that the remark to PVT P was made with a non-

innocent intent. They all testified that appellant made

inappropriate sexual remarks to them as a predicate to

initiating a prohibited relationship. In addition, the

prosecution presented the testimony of PVTs AA and R that

appellant made inappropriate comments to them prior to starting

the adulterous affairs. Finally, PVT P also testified that on

another occasion, appellant "caressed" her head under the guise

of checking for a fever -- that he touched her with "a caressing

motion," which was not proper procedure. Viewing this evidence

in the light most favorable to the prosecution, a rational

finder of fact, considering all the circumstances of this case,

could conclude beyond a reasonable doubt that appellant was

probing the possibility of a prohibited relationship with PVT P

and that he made this remark as a means of doing so, in

violation of the regulation. See id.

IV. PETITION FOR A NEW TRIAL (Issue IV)

A. Background

During voir dire, the military judge asked whether any

member was in the rating or supervisory chain of any other

member, and all members responded negatively. After appellant's

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United States v. Humpherys, No. 01-0426/AR

wife testified on sentencing, she remained in the courtroom to

observe during closing arguments. She noticed two of the panel

members and realized that they were in the same rating chain.

After sentencing, appellant's wife had an opportunity to talk to

defense counsel, and she told him that two of the members were

in the same rating chain. Defense counsel investigated and

discovered that Lieutenant Colonel (LTC) S, who was the

president of the panel, was the senior rater for First Sergeant

(1SG) M, another member.

The defense submitted a post-trial motion for a new trial

on the basis that these two panel members had failed to disclose

their rating chain relationship during voir dire. See RCM

1102(b)(2) and 1210(f), Manual, supra. After the Government

filed its response addressing the relationship and its impact on

the trial, the defense filed a "renewed motion for a new trial."

In that motion, defense counsel argued: "The question that is

under scrutiny here is not whether any member [sic] worked

together in the past, but rather why LTC S[] and 1SG M[] chose

to conceal the fact that there was an existing rater-rated

relationship."

The military judge held a post-trial session under Article

39(a), supra, to question the two members, during which both of

them acknowledged the relationship but indicated that they did

not remember being asked about it during voir dire. Both

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United States v. Humpherys, No. 01-0426/AR

testified that their answers were not efforts to conceal their

rating chain relationship.

At the conclusion of the hearing, the military judge made

extensive findings of fact and conclusions of law. The military

judge found that “1SG M[] feels comfortable disagreeing with LTC

S[] and feels she is a very approachable commander.” He also

found that “[b]oth deny any impact of their relationship on the

deliberations. LTC S[] noted that, in the deliberations, there

was no effort by her to influence any member and that each

person was allowed their [sic] own opinion. 1SG M[] also noted

that he felt no threat or influence on him and that his vote was

his own and was freely allowed. The court finds these

statements to be truthful.”

The judge concluded that LTC S and 1SG M had given a

“technically . . . incomplete response” but that "the parties

were clearly on notice, well prior to trial" of the duty and

unit assignment of each member. He also concluded that LTC S

allowed the members to vote their own conscience and that the

members felt the vote was their own. Finally, he concluded that

he would not have granted a challenge for cause at trial had LTC

S and 1SG M been challenged on the basis of this relationship.

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United States v. Humpherys, No. 01-0426/AR

B. Post-Trial Review of a Panel Member’s Responses During Voir
Dire

"Impartial court-members are a sine qua non for a fair

court-martial." United States v. Modesto, 43 MJ 315, 318

(1995); see RCM 912(f)(1)(N), Manual, supra. Voir dire is an

important method for identifying a member whose impartiality

might be questioned. United States v. Wiesen, 56 MJ 172, 174

(2001), pet. for recon. denied, __ MJ __ (2002). When a panel

member fails to disclose information during voir dire, the

defendant must make two showings in order to receive a new

trial. "'[A] party must first demonstrate that a [panel member]

failed to answer honestly a material question on voir dire, and

then further show that a correct response would have provided a

valid basis for a challenge for cause.' McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. [548,] 556 [(1984)]."

United States v. Mack, 41 MJ 51, 55 (CMA 1994). We have noted

that an evidentiary hearing is the appropriate forum in which to

develop the full circumstances surrounding each of these

inquiries. Id. at 55-56.

One basis upon which a court member may be challenged is the

member's actual or implied bias. See Wiesen, 56 MJ at 172; RCM

912(f)(1)(N), supra. "The test for actual bias is whether any

bias is such that it will not yield to the evidence presented

and the judge's instructions." Id. at 174 (internal quotations

33
United States v. Humpherys, No. 01-0426/AR

and citations omitted). In contrast to the subjective standard

of actual bias, the core of implied bias is "a concern with

public perception and the appearance of fairness in the military

justice system." Id. "[T]here is implied bias when 'most people

in the same position would be prejudiced.'" Id. at 174

(citations omitted). “[T]he military judge is given great

deference when deciding whether actual bias exists because it is

a question of fact, and the judge has observed the demeanor of

the challenged member.” United States v. Napolitano, 53 MJ 162,

166 (2000)(citing United States v. Warden, 51 MJ 78, 81 (1999)).

On a question of actual bias, we review the judge’s findings on

actual bias for an abuse of discretion. Wiesen, 56 MJ at 175.

"On the other hand, issues of implied bias, which entail both

factual inquiry and objective application of legal principle,

are reviewed under a less deferential standard." Id.

C. Discussion

Petitions for a new trial “are generally disfavored.”

United States v. Williams, 37 MJ 352, 356 (CMA 1993). Granting

a petition for a new trial rests “within the sound discretion of

the authority considering . . . [that] petition.” United States

v. Bacon, 12 MJ 489, 492 (CMA 1982)(quoting United States v.

Lebron, 46 CMR 1062, 1066 (AFCMR 1973)). We review a military

34
United States v. Humpherys, No. 01-0426/AR

judge’s ruling on a petition for a new trial for abuse of that

discretion. United States v. Rios, 48 MJ 261, 268 (1998).

The post-trial process empowers the military judge to

investigate and resolve allegations, such as those in this case,

by interviewing the challenged panel members. It allows the

judge to accomplish this task while the details of trial are

still fresh in the minds of all participants. The judge is able

to assess first-hand the demeanor of the panel members as they

respond to questioning from the bench and counsel. Our role in

the process is to review the results and ensure the military

judge has not abused his or her discretion in reaching the

findings and conclusions.

The military judge found that LTC S and 1SG M did not give

a correct response when asked whether any member was in a rating

chain with any other member. The military judge expressly

concluded that the omission was "technical," and he implicitly

found that it was inadvertent and without any intent to conceal

or deceive. In light of our determination as to whether a full

and correct response would have provided a valid basis for a

challenge for cause, we need not decide here whether the answers

under these circumstances satisfy appellant's initial burden to

"demonstrate that [the members] failed to answer honestly a

material question on voir dire. . . ." Mack, 41 MJ at 55.

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United States v. Humpherys, No. 01-0426/AR

"It is well settled that a senior-subordinate/rating

relationship does not per se require disqualification of a panel

member.” Wiesen, 56 MJ at 175. In this case, the military

judge conducted a full evidentiary hearing on the record. That

inquiry made clear that the relationship between LTC S and 1SG M

was entirely professional, did not involve any negative aspects

between them, and would not hamper 1SG M's independent thinking

and fulfillment of his responsibility as a panel member. No

member of the public would reasonably suspect the fairness of

this trial based on this relationship. Similarly, as to actual

bias, the hearing made equally clear that LTC S did not

improperly influence 1SG M during deliberations and that 1SG M

felt no threat or influence on him and his vote was his own.

The military judge concluded that there was no bias in the

deliberations.

Based upon these proceedings, the military judge concluded

that he would not have granted a challenge for cause had it been

made at trial. We agree that full and accurate responses by

these members would not have provided a valid basis for a

challenge for cause against either or both. Accordingly, the

military judge did not abuse his discretion in ruling that

appellant was not entitled to a new trial.

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United States v. Humpherys, No. 01-0426/AR

V. CONCLUSION

The decision of the United States Army Court of Criminal

Appeals is affirmed.

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United States v. Humpherys, No. 01-0426/AR

CRAWFORD, Chief Judge (concurring in the result):

I agree with the result reached in this case but would take

a different approach than the majority regarding character

evidence. Sergeant First Class Jones opined that appellant was

“a competent, professional drill sergeant, noncommissioned

officer. He thinks about the welfare of the soldier. He trains

them. He applies the insist and assistment method in accordance

with TRADOC regulation 350-6 [sic].” Accordingly, part of the

good character evidence presented by the defense was that

appellant was complying with the regulations. Thus, it was

permissible for the Government to introduce the first page of

appellant’s own statement to contradict the evidence that

appellant complied with trainee regulations. See, e.g., Ryan v.

Board of Police Commissioners, 96 F.3d 1076, 1082 n.1 (8th Cir.

1996)(“a court may permit the opponent to introduce similarly

inadmissible evidence in rebuttal”); United States v. Brewer, 43

MJ 43, 50 (1995)(defense responsible for reasonable inferences

from answer)(Crawford, J., concurring in the result). Once the

defense opened the door by presenting evidence that appellant

complied with the regulations pertaining to trainees, the

Government was permitted to rebut that evidence. Id. Once the

accused introduces evidence of pertinent traits of good

character, he has opened the door for rebuttal of those traits.
United States v. Humpherys, No. 01-0426/AR

See generally United States v. Hewitt, 634 F.2d 277 (5th Cir.

1981).

With regard to Issue IV, I agree that the military judge

did not abuse his discretion in denying appellant’s petition for

a new trial. Appellant has demonstrated no valid basis to

sustain a causal challenge. See McDonough Power Equipment, Inc.

v. Greenwood, 464 U.S. 548 (1984); United States v. Wiesen, 56

MJ 172, 177 (2001)(Crawford, C.J., dissenting).

2