UNITED STATES, Appellee
v.
Erik G. VASQUEZ, Gunner’s Mate (Guns) Seaman
U.S. Navy, Appellant
No. 00-0224
Crim. App. No. 99-0051
United States Court of Appeals for the Armed Forces
Argued October 11, 2000
Decided January 12, 2001
GIERKE, J., delivered the opinion of the Court, in which
SULLIVAN, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J.,
filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Major Charles C. Hale, USMC (argued); Lieutenant
Commander L. J. Lofton, JAGC, USN (on brief).
For Appellee: Major Edward C. Durant, USMC (argued); Colonel
Kevin M. Sandkuhler, USMC, Lieutenant Commander Phillip
Sundel, JAGC, USN, and Lieutenant Danette L. Walker, JAGC,
USNR (on brief).
Military Judge: Thomas P. Tielens
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Vasquez, No. 00-0224/NA
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted appellant, pursuant to his pleas, of stealing
merchandise worth $876.00 from the Navy Exchange, in violation of
Article 121, Uniform Code of Military Justice, 10 USC § 921. The
military judge sentenced appellant to a bad-conduct discharge,
confinement for 75 days, forfeiture of $600.00 pay per month for
3 months, and reduction to the lowest enlisted grade. In
accordance with a pretrial agreement, the convening authority
disapproved all confinement in excess of time served but approved
the remainder of the sentence. The Court of Criminal Appeals
affirmed the findings and approved sentence. 52 MJ 597 (1999).
This Court granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
JUDGE DID NOT VIOLATE MIL. R. EVID. 410 BY ADMITTING (AS
AGGRAVATION UNDER RCM 1001) APPELLANT’S ADMISSION OF GUILT
IN AN UNRELATED REQUEST FOR AN OTHER THAN HONORABLE
DISCHARGE.
For the reasons set out below, we reverse the decision of the
Court of Criminal Appeals.
Factual Background
During the plea inquiry, appellant told the military judge
that he was asked by another sailor to be the lookout while the
other sailor stole merchandise from the Navy Exchange. The plan
was to return the stolen property to the Navy Exchange for a
refund and split the money. When they were unable to obtain a
refund without a receipt, they decided to “go shopping” again.
Appellant agreed to act as lookout again while his co-actor took
more items, intending to exit the store without paying for them.
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As appellant and his co-actor exited the store, they were
apprehended.
After appellant’s pleas of guilty were accepted by the
military judge, the prosecution offered evidence that appellant
had requested an administrative discharge under other than
honorable conditions in lieu of trial by court-martial for an
unauthorized absence of 212 days. Appellant was awaiting
execution of the administrative discharge when he committed the
larceny. Appellant’s request included an admission that he was
in fact guilty of the unauthorized absence.
Trial counsel argued that the request for administrative
discharge was admissible as a personnel record relating to the
character of appellant’s prior service under RCM 1001, Manual for
Courts-Martial, United States (1998 ed.), and was not excluded by
Mil. R. Evid. 410, Manual, supra. The military judge overruled a
defense objection and admitted the evidence under RCM
1001(b)(2).∗
The defense case focused on avoiding a bad-conduct
discharge. In an unsworn statement, appellant described his life
growing up in a poor family and a bad neighborhood. He
remembered his grandfather’s war stories about World War II and
decided to enlist in the Navy. He did not mention his
unauthorized absence or approved administrative discharge. He
concluded his unsworn statement with the following:
∗
All Manual provisions are cited to the version in effect at the
time of trial. The current version is unchanged, unless
otherwise indicated.
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I enlisted in October of ’94, not for the college money
or to see the world, I joined for three reasons, sir:
To serve my country, to make something out of myself,
and to make my grandfather proud of me. Sir, the
bottom line, I wanted to make a man out of myself and
not be one of the street punks that I used to see
everyday on the street. Sir, while in the Navy I have
been many places and done many things and met many
people, and I loved everyday of it. From that I have
taken life lessons that I couldn’t learn anywhere else.
This right here, sir, will be no different. Sir, at
this time I would like to apologize to the United
States Navy, to you, sir, my family, and especially my
grandfather who I have let down. I am sorry, and thank
you very much, sir.
In sentencing argument, trial counsel made specific
reference to appellant’s unauthorized 212-day absence and asked
the military judge to impose a sentence that included a bad-
conduct discharge. Defense counsel emphasized appellant’s
remorse, commented on the influence of other troublemakers in the
unit on appellant, and argued that a bad-conduct discharge would
be too severe a punishment.
The Court of Criminal Appeals upheld the military judge’s
ruling. It held that the approved request for administrative
discharge documented appellant’s unauthorized absence “in much
the same way as a record of a prior conviction is documented by a
promulgating order or a record of nonjudicial punishment by the
completed mast report form.” 52 MJ at 599.
The court below further held that Mil. R. Evid. 410 was not
applicable to appellant’s case. The court reasoned that Mil. R.
Evid. 410 applies only to pending charges and that the
unauthorized absence was no longer pending after appellant’s
request for an administrative discharge was approved. Id.
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Discussion
RCM 1001(b)(2) permits the prosecution to introduce a broad
range of documents from an accused’s personnel records. However,
it does not provide blanket authority to introduce all
information that happens to be maintained in the accused’s
personnel records. United States v. Ariail, 48 MJ 285, 287
(1998).
Mil. R. Evid. 410 prohibits the admission of a guilty plea
that was later withdrawn, a plea of nolo contendere, a statement
made during a judicial inquiry into a plea of guilty or nolo
contendere, or “any statement made in the course of plea
discussions.” Mil. R. Evid. 410 is generally taken from Fed. R.
Evid. 410, but is broader because it encompasses statements made
in connection with a request for administrative disposition in
lieu of court-martial. Drafters’ Analysis of Mil. R. Evid. 410,
Manual, supra at A22-34. Mil. R. Evid. 410(b) defines a
“statement made in the course of plea discussions” as including
“a statement made by the accused solely for the purpose of
requesting disposition under an authorized procedure for
administrative action in lieu of trial by court-martial.”
In United States v. Barunas, 23 MJ 71, 75-76 (CMA 1986),
this Court held that an accused’s pretrial letter to his
commander, admitting his guilt and requesting disposition by “any
other avenues of punishment short of court-martial,” was a plea
discussion within the meaning of Mil. R. Evid. 410. This Court
explained that “[a]n excessively formalistic or technical
approach to this rule may undermine” the policy of the rule,
which is “to encourage the flow of information during the plea-
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bargaining process.” See also United States v. Ankeny, 30 MJ 10,
15 (CMA 1990) (defense counsel’s “preliminary overtures” to an
assistant staff judge advocate during a social event encompassed
by Mil. R. Evid. 410); United States v. Brabant, 29 MJ 259, 264
(CMA 1989) (accused’s question to commander, “What can I do to
make this right?” was a plea discussion encompassed by Mil. R.
Evid. 410).
In light of this Court’s long-standing precedent for
avoiding an “excessively formalistic or technical” application of
Mil. R. Evid. 410 in favor of a broad application of the rule, we
must respectfully reject the rationale of the court below for
finding the rule inapplicable. Mil. R. Evid. 410 does not
require that protected plea bargaining statements be related to
offenses “pending” before the court-martial at which they are
offered. Such a construction of the rule would remove its
protection from any accused who bargained for withdrawal or
dismissal of certain charges and specifications.
Furthermore, appellant’s charges arising from the
unauthorized absence are still “pending” because appellant has
not yet received the quid pro quo for his admission of guilt: an
executed discharge. Government appellate counsel acknowledged in
oral argument that the convening authority was not empowered to
execute the requested discharge and that the request for
discharge was still pending approval at the Navy Bureau of
Personnel at the time it was offered in evidence. Subject to
limitations of the Due Process Clause and Articles 10, 33, and
43, UCMJ, 10 USC §§ 810, 833, and 843, respectively, the
Government remains free to prosecute appellant for the
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unauthorized absence at any time until its jurisdiction is
terminated by appellant’s discharge.
The final question is whether appellant was prejudiced by
the violation of Mil. R. Evid. 410. See Barunas, 23 MJ at 76.
Appellant had no previous convictions or nonjudicial punishment.
On its face, the unexplained 212-day absence was a serious
offense. Appellant expressed remorse for the larceny, and his
counsel argued that a bad-conduct discharge was too severe. We
cannot say “with fair assurance” that evidence of a 212-day
unauthorized absence did not have a “substantial influence” on
the sentence imposed by the military judge. Kotteakos v. United
States, 328 U.S. 750, 765 (1946). Furthermore, under the criteria
for sentence reassessment prescribed in United States v. Sales,
22 MJ 305, 307-09 (CMA 1986), we are convinced that it cannot be
reliably determined that the military judge would have imposed a
bad-conduct discharge in the absence of evidence of the 212-day
unauthorized absence. Accordingly, we cannot give the court below
its usual broad discretion to reassess and affirm the bad-conduct
discharge, because we would be unable to affirm that decision in
light of Sales.
Decision
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed as to findings but reversed as to
sentence. The sentence is set aside. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
the Court of Criminal Appeals. That court may either reassess
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and affirm a sentence that does not include a bad-conduct
discharge, or it may order a sentence rehearing.
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CRAWFORD, Chief Judge (concurring in part and
dissenting in part):
I fully join the majority’s rationale in holding that
Mil.R.Evid. 410, Manual for Courts-Martial, United States
(1998 ed.), was applicable to appellant’s case and that the
military judge’s error in admitting the challenged evidence
had a “substantial influence” on appellant’s sentence.
I respectfully part company with the majority over
their restrictive remand of this case to the Court of
Criminal Appeals for sentence reassessment. In taking this
action, the majority has abridged the lower court’s
sentence reassessment discretion and expertise
unnecessarily, substituted its own judgement of sentence
appropriateness, and virtually dictated a sentence
rehearing, all in derogation of Congressional and
Presidential mandates, as well as 15 years of precedent
from this Court. See Art. 66(c), UCMJ, 10 USC § 866(c);
RCM 1203, Manual, supra; United States v. Suzuki, 20 MJ
248, 249 (CMA 1985); United States v. Sales, 22 MJ 305 (CMA
1986); United States v. Reed, 33 MJ 98, 99 (CMA 1991);
United States v. Cook, 48 MJ 434, 438 (1998); United States
v. Eversole, 53 MJ 132, 138 (2000)(Crawford, C.J.,
dissenting); Id. at 140 (Gierke, J., dissenting).
United States v. Vazquez, No. 00-0224/NA
This Court’s responsibility is to determine, as a
matter of law, whether a Court of Criminal Appeals abuses
its discretion when reassessing and determining that a
sentence imposed at trial, minus the prejudicial error,
would have been of a certain magnitude. Art. 67(c), UCMJ,
10 USC § 867(c); see United States v. Taylor, 51 MJ 390,
391 (1999); United States v. Jones, 39 MJ 315, 317 (1994);
Sales, 22 MJ at 308. Today we put the proverbial cart
before the horse by circumscribing the Court of Criminal
Appeals’ statutory function.
Finally, the restrictive mandate virtually guarantees
a sentence rehearing. Instead of erroneously introducing
appellant’s discharge request at trial, the Government
could have introduced, during sentencing, properly
maintained, complete, reliable personnel forms reflecting
appellant’s absence from and return to duty after 212 days.
See RCM 1001(b)(2); United States v. Ariail, 48 MJ 285
(1998); see generally United States v. Abel, 469 U.S. 45,
56 (1984). Such documents, even though incorporated in the
allied papers of the record of trial, cannot be considered
by the Court of Criminal Appeals when performing its
sentence reassessment. See United States v. Peoples, 29 MJ
426, 428 (CMA 1990). Conversely, they can be introduced
during a sentence rehearing.
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By its action today, the majority says that the Court
of Criminal Appeals is incapable of determining the
ultimate affect (albeit “substantial”) a 212 day
unauthorized absence had on the sentence. Accordingly, the
Court of Criminal Appeals, with its discretion removed,
will have no option but to restart the sentencing process.
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