Filed: Mar. 03, 2004
Latest Update: Mar. 26, 2017
Summary: WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION, EXHIBITS 141 AND 142 AS EVIDENCE IN SENTENCING TO SHOW THAT, APPELLANTS WIFE MAY HAVE BEEN AN ACCESSORY TO HIS ESCAPE, FROM PRETRIAL CONFINEMENT.confinement.the testimony of Ms. Scholzen.in Ms. Scholzens letter.her bias toward Appellant.
UNITED STATES, Appellee
v.
Douglas L. SAFERITE, Senior Airman
U.S. Air Force, Appellant
No. 03-0271
Crim. App. No. 34378
United States Court of Appeals for the Armed Forces
Argued October 22, 2003
Decided March 3, 2004
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Jennifer K. Martwick (argued); Colonel
Beverly B. Knott, and Major Terry L. McElyea (on brief).
For Appellee: Major Shannon J. Kennedy (argued); Colonel
LeEllen Coacher (on brief); Lieutenant Colonel Robert V. Combs
and Lieutenant Colonel Lance B. Sigmon.
Military Judge: Rodger A. Drew, Jr.
This opinion is subject to editorial correction before final publication.
United States v. Saferite, No. 03-0271/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of attempting to
sell military property (three specifications), selling military
property (eight specifications), and larceny of military
property (12 specifications), in violation of Articles 80, 108,
and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880,
908, and 921 (2000), respectively. The adjudged and approved
sentence provides for a dishonorable discharge, confinement for
six years, a fine of $14,565.00 and to be further confined until
the fine is paid but not for more than one year, and a reduction
to the grade of E-1, airman basic. The Court of Criminal
Appeals affirmed the findings and sentence in an unpublished
opinion. United States v. Saferite, ACM 34378 (A.F. Ct. Crim.
App. January 10, 2003).
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION
EXHIBITS 141 AND 142 AS EVIDENCE IN SENTENCING TO SHOW THAT
APPELLANT’S WIFE MAY HAVE BEEN AN ACCESSORY TO HIS ESCAPE
FROM PRETRIAL CONFINEMENT.
For the reasons set out below, we find that the military judge
erred in admitting these two exhibits, but conclude that this
error was harmless and affirm.
Factual Background
The facts underlying Appellant’s conviction were summarized
as follows by the Court of Criminal Appeals:
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In the summer of 1999, the appellant was assigned
to the Network Control Center at Spangdahlem [Air
Base, where appellant was] responsible for computer
systems used for communications. He planned to
separate from the Air Force in September 1999, and had
a job awaiting him in Germany. He was also engaged to
Isabelle Scholzen, a citizen of Luxembourg, who was
expecting their child in December 1999.
From about July to September 1999, the appellant
stole large quantities of expensive computer equipment
and electronic components from his duty section, and
sold them over the Internet through a popular auction
site. On the night before he was scheduled to out-
process from the Air Force, he stole processors from
the eight computers handling the installation’s
unclassified e-mail. He was careful to take only
three of the four processors from each machine, so the
system would continue to operate even though its
capabilities were greatly reduced. Nonetheless,
technicians soon discovered the missing processors,
and the appellant was apprehended before his
separation from active duty. A search of his rented
car and his girlfriend’s home revealed more stolen
government property, and ultimately led investigators
to records of his sales of government property over
the Internet. The total loss to the United States
exceeded $100,000.00
The appellant was placed in pretrial confinement
on 2 October 1999. Air Force authorities allowed him
to marry Isabelle Scholzen while in confinement, and
four days later she gave birth to their child.
Id. at 2.
During Appellant’s trial, he escaped from pretrial
confinement.∗ He was convicted and sentenced in absentia.
∗
Appellant was confined at the military facility in Mannheim,
Germany, but he was taken under guard to Spangdahlem Air Base to
consult with his counsel and participate in trial proceedings.
He was being held overnight in a billeting facility at
Spangdahlem Air Base when he escaped from his guards.
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United States v. Saferite, No. 03-0271/AF
During the sentencing proceedings, defense counsel
presented a written unsworn statement from Appellant’s wife, Ms.
Scholzen. In the statement, she gave her opinion of the
Appellant as a caring father and supportive spouse. She
described in detail her relationship with Appellant including
how she met him, how he convinced her to keep their baby when
she unexpectedly became pregnant, and how and why they got
married even while Appellant was in pretrial confinement. She
described Appellant’s support for her during a challenging
pregnancy and his happiness when their baby was born.
Repeatedly she commented on Appellant’s desire to be a good
husband and father and her need for and dependence on Appellant.
She professed her love for Appellant and described how much they
missed each other. She ended her statement with a passionate
plea for compassion for Appellant.
In rebuttal, trial counsel offered two items of documentary
evidence in an attempt to attack the credibility of Ms.
Scholzen. Trial counsel asserted that these two documents were
evidence of bias by Ms. Scholzen because they “tend to establish
that circumstantially” Ms. Scholzen “was materially involved in
the escape of the accused from pretrial confinement on the 2d of
March 2000.” Prosecution Exhibit 141 was a redacted sworn
statement showing that Appellant, while in pretrial confinement,
had talked to Ms. Scholzen on the telephone on the evening of
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United States v. Saferite, No. 03-0271/AF
February 29, 2000. Prosecution Exhibit 142 was another sworn
statement showing that approximately 40 minutes after Appellant
escaped from custody, Ms. Scholzen was stopped by military
authorities in the middle of the night as she was driving out of
Spangdahlem Air Base at a high rate of speed. Appellant was not
in his wife’s vehicle and his location was not established.
Prosecution Exhibit 142 further revealed that Ms. Scholzen told
the German police at the scene that she went to Spangdahlem to
talk to her husband but was unable to locate him.
Trial defense counsel objected to both of these documents
and argued they were not relevant and were unduly prejudicial.
The military judge admitted Prosecution Exhibits 141 and 142
over defense objection, ruling that the evidence was relevant to
show bias, in that it tended to show that Ms. Scholzen was
willing “to engage in criminal activity in order to support her
husband.” The military judge weighed the danger of unfair
prejudice against the probative value and concluded the evidence
was not unfairly prejudicial “because it’s not [Appellant] we’re
talking about here, it’s his wife.” The military judge ruled
that the documents, with further redaction of extraneous
material, were admissible extrinsic evidence under Military Rule
of Evidence 608(c) [hereinafter M.R.E.].
In his sentencing instructions, the military judge
cautioned the members that they must “bear in mind that the
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United States v. Saferite, No. 03-0271/AF
accused is to be sentenced only for the offenses of which he has
been found guilty.” He further instructed the members that they
were permitted to consider Appellant’s absence from the court-
martial “in assessing his military record,” but he cautioned
them,
[R]emember that if he is to be punished for that
absence, it will be in a different forum, on a future
date. The function of this court is to punish the
accused only for the offenses of which he has been
found guilty by this court.
During arguments on the sentence, trial counsel attacked
the testimony of Ms. Scholzen. First, he argued that “She’s not
entirely uninvolved with this entire situation.” He asserted
that she was aware of Appellant’s making big money by auctioning
items on the Internet. Second, he argued that the evidence
suggested that “there was some coordination, some communication,
some collusion there between the two of them about his escape
from confinement.” Trial counsel assured the members that the
evidence was not presented to “beat up” Ms. Scholzen, but “as a
form of bias.” He concluded this portion of his argument by
exhorting the members to consider Ms. Scholzen’s willingness to
help Appellant escape from confinement when they read her
statement.
Addressing the present issue, the Court of Criminal Appeals
held that the military judge did not abuse his discretion in
admitting Prosecution Exhibits 141 and 142. The court stated
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United States v. Saferite, No. 03-0271/AF
complete agreement with the reasoning of the military judge that
these documents tend to show bias of Appellant’s wife because of
her willingness to engage in criminal activity to support
Appellant. Saferite, ACM 34378 at 3-4.
Before this Court, Appellant asserts that Prosecution
Exhibits 141 and 142 were not proper rebuttal evidence because
they did not “explain, repel, counteract or disprove” anything
in Ms. Scholzen’s letter. He asserts that the evidence did not
demonstrate any “bias, prejudice or any motive to misrepresent”
on the part of Ms. Scholzen, because the allegation of
involvement in her husband’s escape from confinement does not
make her feelings about her husband and her perception of his
qualities less true. Appellant also argues that the evidence
was unduly prejudicial because it allowed the prosecution to
refer to uncharged misconduct in argument, i.e., that Appellant
conspired with his wife to escape and was the type of person who
would involve his wife in his criminal activities, without a
proper cautionary instruction from the military judge regarding
the limited purpose for which the evidence was received.
The Government argues that the military judge did not abuse
his discretion by admitting the evidence. It argues that a
declarant’s bias is always relevant, that trial counsel limited
his use of the evidence to focus on bias, and that the military
judge cautioned the members that they could punish Appellant
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United States v. Saferite, No. 03-0271/AF
only for the offenses of which he was found guilty. The
Government argues that the evidence rebutted Ms. Scholzen’s
characterization of Appellant as a devoted “family man” by
showing that he was “willing to involve his wife in a criminal
enterprise” and “willing to ‘orphan’ his offspring by risking
both of their parents’ freedom.” Finally, the Government argues
that even though the members were already aware that Appellant
was a deserter, they sentenced him to confinement for six years
instead of 16 years as recommended by the trial counsel,
indicating that they were not unduly inflamed by the evidence at
issue.
Discussion
“The Military Rules of Evidence are applicable to
sentencing . . . thus providing procedural safeguards to ensure
the reliability of evidence admitted during sentencing.” United
States v. McDonald, 55 M.J. 173, 176 (C.A.A.F. 2001); Manual for
Courts-Martial, United States (2002 ed.), Analysis of the
Military Rules of Evidence A21-69. The military judge may
exercise discretion to relax the evidentiary rules for the
defense to present sentencing evidence. M.R.E. 1101(c); Rule
for Courts-Martial 1001(c)(3). This relaxation of evidentiary
rules “‘goes more to the question of whether the evidence is
authentic and reliable’” and “otherwise inadmissible evidence
still is not admitted at sentencing.” United States v. Boone,
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United States v. Saferite, No. 03-0271/AF
49 M.J. 187, 198 n.14 (C.A.A.F. 1998)(quoting David A.
Schlueter, Military Criminal Justice: Practice and Procedure §
16-4(B) at 721 (4th ed. 1996)).
During sentencing, as at every other moment of trial
testimony, the credibility of a witness is an omnipresent issue.
Each witness’s credibility determines the authority of the
testimony. Section VI of the Military Rules of Evidence is
entitled “Witnesses,” but easily could be viewed as “Credibility
of Witnesses” as the whole section focuses on technical
evidentiary rules to bolster or to attack the credibility of
testimony.
M.R.E. 608 is a key evidentiary rule that covers several
methods to bolster or attack the credibility of a witness.
These methods include opinion and reputation evidence as to the
character of a witness for truthfulness and questions regarding
specific instances of conduct that may be relevant to
credibility. Important to the present case is M.R.E. 608(c),
which states: “Evidence of bias. Bias, prejudice, or any motive
to misrepresent may be shown to impeach the witness either by
examination of the witness or by evidence otherwise adduced.”
Evidence of bias can be powerful impeachment. Davis v.
Alaska, 415 U.S. 308 (1974). The Supreme Court has observed
that “[p]roof of bias is almost always relevant.” United States
v. Abel,
469 U.S. 45, 52 (1984). Although extrinsic evidence of
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United States v. Saferite, No. 03-0271/AF
specific acts of misconduct may not be used to prove a witness’s
general character for truthfulness, it may be used to impeach a
witness by showing bias. United States v. Hunter, 21 M.J. 240,
242 (C.M.A. 1986).
Additionally, we are mindful that evidentiary rules are not
applied in a factual vacuum. The context in which evidence is
offered is often determinative of its admissibility. In the
present case, as the prosecution offered Prosecution Exhibits
141 and 142 to rebut Defense Exhibit C, the admissibility of
rebuttal evidence is at issue. This Court has clearly stated
the legal function of rebuttal evidence: "It is . . . to
explain, repel, counteract or disprove the evidence introduced
by the opposing party." United States v. Banks, 36 M.J. 150,
166 (C.M.A. 1992)(quoting United States v. Shaw,
9 C.M.A. 267,
271,
26 C.M.R. 47, 51 (1958)(Ferguson, J., dissenting)). “The
scope of rebuttal is defined by evidence introduced by the other
party.” Id. at 166.
Rebuttal evidence, like all other evidence, may be excluded
pursuant to M.R.E. 403 if its probative value is substantially
outweighed by the danger of unfair prejudice. United States v.
Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001). M.R.E. 403 applies to
sentencing evidence. United States v. Rust,
41 M.J. 472, 478
(C.A.A.F. 1995).
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United States v. Saferite, No. 03-0271/AF
We review a military judge’s evidentiary rulings for abuse
of discretion. United States v. Sullivan, 42 M.J. 360, 363
(C.A.A.F. 1995). When the military judge conducts a proper
balancing test, we will not overturn the ruling to admit the
evidence unless there is a “clear abuse of discretion.” United
States v. Ruppel,
49 M.J. 247, 250 (C.A.A.F. 1998).
We hold that the military judge clearly abused his
discretion. While the evidence was logically relevant to show
Ms. Scholzen’s bias in favor of Appellant, its probative value
was substantially outweighed by the danger of unfair prejudice.
The probative value was minimal. The thrust of Ms.
Scholzen’s statement was to present her personal opinion that
Appellant was a good father and husband. Her poignant plea
professed her love for Appellant, emotional need for his
support, and loneliness during his absence. The content and
tone of Ms. Scholzen’s statement convincingly showed her bias as
the wife of Appellant. It was clear that her statement
presented her view of Appellant through her eyes as his wife.
Her detailed explanation of her marriage to Appellant while he
was in pretrial confinement spoke volumes about her commitment
to him and clear bias for him.
In this context, evidence of her possible complicity in
Appellant’s escape added little to establish her bias in her
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United States v. Saferite, No. 03-0271/AF
statement. At best, it was merely cumulative on the issue of
her bias toward Appellant.
On the other hand, the danger of unfair prejudice was
substantial. Rather than show bias on the part of Ms. Scholzen,
the evidence tended merely to allege uncharged misconduct by
Appellant. If the members believed the theory advanced by the
prosecution, then Appellant was guilty of conspiring with his
wife and involving her in the criminal conduct of his escape.
First, we view the factual evidence of this theory as tenuous at
best. The circumstances of the authorities stopping Ms.
Scholzen off base early in the morning did not establish her
involvement in Appellant’s escape at his behest. Second,
notwithstanding the factual deficiency to link Ms. Scholzen to
Appellant’s escape, trial counsel focused his argument on the
uncharged misconduct. Trial counsel did ask the members to find
“a form of bias” from the willingness of Ms. Scholzen to help
Appellant escape. But the focus of his argument was on the
uncharged misconduct of Appellant’s conspiring with his wife to
assist him in his escape as reflected in trial counsel’s
statement, “We suggest to you that there was some coordination,
some communication, some collusion there between the two of them
about his escape from confinement.”
Although we identify this danger of unfair prejudice, we
further hold that the error was harmless under the particular
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facts of this case. Evidence of Appellant’s escape was already
before the members. Appellant was tried in absentia. The
military judge carefully instructed the members to sentence
Appellant only for the offenses of which he was convicted. He
cautioned the members that any punishment arising from
Appellant’s absence “will be in a different forum, on a future
date.”
The record reflects that the members followed the military
judge’s instruction. The maximum period of confinement was 230
years and the trial counsel asked the members to impose
confinement for 16 years. However, the members imposed
confinement for only six years. Thus, we can “say, with fair
assurance, . . . that the judgment was not substantially swayed
by the error.” Kotteakos v. United States, 328 U.S. 750, 765
(1946)(quoted in Hursey, 55 M.J. at 36 (C.A.A.F. 2001)). See
also United States v. Baer,
53 M.J. 235, 238 (C.A.A.F. 2000).
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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